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A  DIGEST 


OP 


OPINIONS 


JDDGE  ADVOCATE  GENERAL  OF  THE  ARMY, 


WITH  NOTES, 


BY 


BYT.   COLONEL  W.  WINTHEOP, 

Judge  Advocate,  TJ.  S.  Army, 
Assistant  to  the  Judge  Advocate  General. 

OF 

£lUfORNJ 


[PUBLISHED  BY  THE  ATJTIIOEITT  OF  THE  SECKETAET  OF  WAK.] 


WASHINGTON: 

government  printing  office. 

September  1,  ISSO. 

SECOND    THOUSAND. 


Entered,  according  to  Act  of  Congress,  in  the  year  1880,  by 

WILLIAM  WINTHROP, 

In  tlie  office  of  the  Librarian  of  Congress,  at  "Washington, 


PEEFACE. 


The  opinions,  of  which  abstracts  are  presented  in  this  work, 
consist  of  a  selection  from  a  mass  of  opinions  recorded  in  the 
forty  four  volumes  of  the  Eeports  of  the  Bureau  of  Military 
Justice,  and  furnished — mainly  to  the  Secretary  of  War — by 
BvT.  Maj.  Gen.  Joseph  Holt,  Judge  Advocate  General, 
from  September,  1862,  to  December,  1875,  and  b^^  BriGt.  Gen. 
Wm.  McKee  Dunn,  Judge  Advocate  General,  from  the  lat- 
ter date  to  the  present  time.  These  opinions  embrace  those 
given  by  the  Judge  Advocate  General  in  the  course  of  his 
official  reviews  of  the  proceedings  of  military  courts,  or  other- 
wise in  connection  with  the  subject  of  the  administration  of 
justice  in  the  Army ;  as  also  those  rendered  by  him  in  his 
ex  officio  capacity  of  general  legal  adviser  to  the  Secretary  of 
War  or  law  officer  of  the  War  Department,  upon  questions  of 
law  arising  in  the  business  of  that  Department,  and  referred 
to  him  for  opinion  by  its  Head. 

The  present  work  is  not  properly  a  later  edition  of  the 
Digest  of  which  the  last  issue  was  published  in  1868,  but  is 
intended  quite  to  supersede  that  publication.  All  that  was 
deemed  of  permanent  value  therein  has  indeed  been  retained, 
but  much  the  greater  portion  of  the  present  volume  consists 
of  matter  entirely  new,  or  in  part  new  and  newly  i^resented. 
Where  i)racticable,  such  an  arrangement  has  been  made  of 
the  extracts  as  to  divest  them  in  a  degree  of  the  effect  of 
disjecta  membra  and  give  them  connection  and  sequence. 
With  the  view  of  adding  to  the  interest  as  well  as  value  of 
the  work,  the  text  has  been  illustrated  by  notes;  the  au- 
thorities cited  being  taken  from  compilations  commenced, 
for  personal  use,  some  fifteen  years  ago,  and  kept  up  with 
the  new  adjudications,  orders,  enactments,  &c.,  as  they 
appeared.  The  references — especially  those  made  to  cases  in 
General  Orders — might  have  been  considerably  extended, 
but  it  has  been  jireferred  to  select  such  as  were  especially 

lU 


01  ^RR*^ 


IV  PREFACE. 

pointed  and  pertinent.  The  citations  niclude  cases  reported 
in  10  Otto,  (100  U.  S.,)  the  last  volume  of  the  Eeports  of  the 
Supreme  Court,  (published  in  August ;)  as  also  cases  in  the 
15th  volume  of  the  Eeports  of  the  Court  of  Claims,  yet  to  be 
published ;  as  well  as  opinions  to  be  contained  in  the  forth- 
coming volumes — XY  and  XVI — of  the  Oi^inions  of  the  At- 
torneys General  j  *  together  with  General  Orders  of  the  series 
of  1880,  as  thus  far  issued  from  the  Headquarters  of  the 
Army  and  of  the  different  military  dei^artments. 

Except  in  two  or  three  instances  specially  indicated,  no 
opinion  has  been  i)resented  in  this  volume  which  is  known  or 
believed  to  have  been  disapproved  by  the  Secretary  of  War. 
It  is  by  his  authority  that  the  work  has  not  only  been  printed 
a-t  the  public  expense,  but,  in  order  that  all  proper  persons 
desiring  the  same  may  be  supplied  with  copies,  has  also  been 
stereotyped. 

*  I  desire  to  express  my  acknowledgments  to  the  Attorney 
General,  Hon.  Charles  Devens,  for  his  courtesy  in  permitting 
me  to  examine  and  make  extracts  from  the  original  opinions 
as  recorded  in  the  Department  of  Justice.    W.  W. 


CONTENTS. 


A. 

Title.  Page. 

Articles  of  War  . , 1-100 

Second  Article , 1 

Third  Article 1 

Fourth  Article ^ 2 

Eighth  Article 3 

Ninth  Article 4 

Thirteenth  Article 5 

Seventeenth  Article    5 

Nineteenth  Article 7 

Twentieth  Article    8 

Twenty-first  Article 8 

Twenty-second  Article 11 

Twenty-fourth  Article 13 

Twenty-fifth  Article 13 

Twenty-sixth  Article 14 

Thirtieth  Article 15 

Thirty-eighth  Article 16 

Thirty-ninth  Article 18 

Forty-second  Article 19 

Forty-fifth  Article , 20 

Forty-sixth  Article 21 

Forty-seventh  Article 21 

Forty-eighth  Article 21 

Fiftieth  Article 23 

Fifty-first  Article 24 

Fifty-fourth  Article , 25 

Fifty-fifth  Article 26 

Fifty-eighth  Article 27 

Fifty -ninth  Article 28 

Sixtieth  Article 31 

Sixty-first  Article 37 

Sixty-second  Article 41 

Sixty-third  Article 48 

V 


VI  CONTENTS. 

Title.  Pasje. 

A.RTICLES  OF  War— Continued. 

Sixty-fifth  Article 50 

Sixty-sixth  Article 51 

Seventieth  Article  52 

Seventy-first  Article 52 

Seventy-second  Article 53 

Seventy-third  Article 58 

Seventy-fourth  Article 58 

Seventy-fifth  Article 5S 

.  Seventy -seventh  Article 60 

Seventy-ninth  Article - 60 

Eightieth  Article 61 

Eighty-first  Article 63 

Eighty-second  Article 64 

Eighty-third  Article 65 

Eighty-fourth  Article 67 

Eighty-sixth  Article 69 

Eighty-eighth  Article 70 

Mnety-first  Article 73 

Ninety-second  Article 75 

Ninety-third  Article 76 

Mnety-fourth  Article 77 

Ninety-sixth  Article 78 

Ninety-seventh  Article 80 

Ninety-ninth  Article .  „ 82 

One  hundredth  Article 82 

One  hundred  and  first  Article 82 

One  hundred  and  second  Article , 83 

One  hundred  and  third  Article 85 

One  hundred  and  fourth  Article 89 

One  hundred  and  sixth  Article 91 

One  hundred  and  ninth  Article .  92 

One  hundred  and  eleventh  Article 92 

One  hundred  and  twelfth  Article 92 

One  hundred  and  fourteenth  Article 95 

One  hundred  and  fifteenth  Article 96 

One  hundred  and  nineteenth  Article  - 98 

One  hundred  and  twenty-first  Article 99 

One  hundred  and  twenty-seventh  Article 100 

Absence  Without  Leave  . . . '. 101 

Absent  Member 101 


CONTENTS.  VII 

Title.  Page. 

Accomplice 101 

Accuser  or  prosecutor 102 

^'Acting  Assistant"  or  "Contract"  Surgeon..  103 

Ad  JOURNIMENT 103 

Advertisement 103 

AlD-DE-CAMP 103 

Alaska 104 

Alien 105 

Amendment   of  Charge 105 

Appeal 105 

Appointment 106 

Approval  or  Disapproval  of  Proceedings,  &c  .  Ill 

Arms— Furnishing  of Ill 

Arms — Sale  of Ill 

Army — Employment  of  for  Civil  Purposes 111 

Army  Eegulations 116 

Arraignbient 118 

Arrest,  I — Military 119 

Arrest,  II — By  the  Civil  Authorities 121 

Artificial  Limbs 122 

Assignjment  of  Contract 122 

Assistant  Surgeon , 122 

Attachment,  (of  Property) 123 

Attachment,  (of  Witness) 123 

Authentication 123 

Bail 121 

Ball  and  Chain 124 

Board  of  Investigation 124 

Board  of  Survey. . , , 125 

Bond 126 

Bounty 132 

Breach  of  Arrest 133 

Brevet  Bank 134 

Brigade  ...  135 

Burglary   135 

C. 

Cadet 136 

Cajmp  Follower 138 

Captured  Property 139 


VITI  CONTENTS. 

Title.  Page. 

CASHIERINa 141 

Certificate  of  Merit 141 

Cession  of  Jurisdiction 141 

Challenge — to  fight  a  Duel 144 

Challenge — to  Meiviber  of  Court ]  44 

Chaplain 144 

Charge , , 145 

Chief  Musician 156 

Citizenship 156 

Civilian— Amenability  of   to  Military  Juris- 
diction — . 156 

Civil  Employment  of  the  Army .  156 

Civil  Office 157 

Civil  Process 160 

Civil  Eights 164 

Claims 164 

Clerk „ 171 

Clothing  Allowance 1 72 

Clothing— Loss  of 173 

College  or  University 174 

Colored  Troops 175 

Commissary  Sergeant 176 

Commission 176 

Commutation 176 

Company  Commander ....  176 

Company  Fund  . 177 

Compensation — for  Extra  Services 178 

Compensation — for  Property  Taken  for  Pub- 
lic USE 179 

Conduct  to  the  Prejudice  of  Good  Order  and 

Military  Discipline 180 

Conduct  Unbecoming  an  Officer  and  a  Gen- 
tleman    180 

Confession , 180 

Confinement 180 

Contempt  of  Court 180 

Continuance 180 

Contract 180 

Convening  Officer 197 

Convening  Order 198 

Copy  of  Proceedings 198 


CONTENTS.  IX 

Title.  Pago. 

COBKECTION  OF  EECORD 198 

Counsel,  I — In  Civil  Proceedings 198 

Counsel,  II — To  assist  a  Judge  Advocate 198 

Counsel,  III — For  the  Accused 190 

Court  Martial,  I— Authority  and  Function  . . ,  200 

Court  Martial,  II— Jurisdiction 206 

Court  of  Inquiry „ 217 

Cowardice 217 

Custom  of  the  Service i . . 217 

D. 

Death  Sentence 218 

Defects  in  Proceedings,  Sentence,  &c 218 

Defence , 218 

Department  Commander 220 

Deposition 220 

Desertion 220 

Devolution  of  Co^oiand 229 

Disapproval  of  Proceedings,  &c 229 

Disbursing  Officer 229 

Discharge 231 

Dismissal,  I— By  Sentence 236 

Dismissal,  II — By  Order  of  the  President 239 

Dismissal,  III — By  Order  :  Trial  in  Case  of 212 

Disobedience  of  Orders . . 214 

Disqualification 244 

District  of  Columbia 246 

Division 246 

Drunkenness 246 

Drunkenness  on  Duty. 247 

E. 

Embezzlement 248 

Eminent  Domain 248 

Enemy , 248 

Engineer  Corps 248 

Enlistment 248 

Escape 253 

Evidence 253 

Extradition 259 

Extra  Duty  pay 200 

Extra  pay •. 261 


X  CONTENTS. 

F. 

Title.  Page. 

Felony 262 

Field  Officer's  Court , . .  262 

Finding 262 

Fine 267 

Flao  of  Truce 269 

Foreign  Service 269 

Forfeiture,  I — By  Operation  of  Law 270 

Forfeiture,  II — By  Sentence 270 

Fuel  Allowance 275 

Gambling » ,  276 

General  Orders 276 

General  Staff 276 

Good  Conduct  in  Confinement 277 

Governor  of  State 277 

Guard  Duty 277 

Guerrilla , 277 

Guilty— Plea  of 277 

H. 

Habeas  Corpus 278 

Head  of  Departi^ient 283 

Homicide 283 

Honorable  Discharge 283 

Hospital 283 

Hours  of  Session  of  Court  Martial 283 

I. 

iMPRISONIklENT 284 

Iiviprovement  of  Eivers  and  Harbors 290 

Indian 291 

Indian  Agent 291 

Indian  Country 291 

Indian  War 293 

Injunction > „ 294 

Insanity 294 

Interest 295 

Interpreter 295 

Inventor 295 

J. 

Judge  Advocate 296 

Jurisdiction ,    302 


CONTENTS.  XI 

1.. 

Title.  Page. 

Land 303 

Larceny 303 

Lawful  Command  or  Order 303 

Law  of  War 303 

Lease 309 

Leave  of  Absence 309 

Lesser  Included  Offence 310 

License 311 

Limitation 311 

Loss  OF  Files 311 

Making  good  Time  lost  by  Desertion 313 

Manslaughter 313 

Marriage 315 

Martial  Law 315 

Medical  Cadet 318 

Medical  Officer 318 

Member  of  Court 319 

Mileage 323 

Military  Academy 321 

Military — Ai^ienability  of  to  the  Civil  Juris- 
diction   321 

Military  Coi\i:missioNj  I — Origin,  Constitution, 

Procedure,  &c 324 

Military  Commission,  II — Jurisdiction  .   327 

Military  Co^oiission,  III — Sentence 333 

Military  Governiment 334 

Military  Offence 334 

Military  Prison 335 

Military  Eeservation , 336 

Military  Storekeeper 339 

Misappropriation 340 

Mitigation 340 

Mounted  Pay 340 

Munitions  of  War 340 

Murder 341 

Musician    312 

Muster-out 342 

Muster  Eoll , 342 

Mutiny 342 


XII  CONTENTS. 

Title.  Page. 

National  Cemetery 343 

New  Member 344 

New  Trial  . , 344 

Nolle  Prosequi 345 

Non-commissioned  Officer 346 

Non-intercourse 346 

Notice  346 

O. 

Oath^  I— Authority  to  Administer 347 

Oath,  II — of  Court,  Witness,  Eeporter,  &c...  348 

Oath,  III— of  Enlistment 348 

Oath,  IY — of  Office  348 

Office 349 

Officer's  Servant 349 

Official  Papers 349 

Order,  I — In  General 350 

Order,  II — CoNVENiNa  A  Court  Martial 353 

Order,  III— Of  Promulgation , 354 

Ordnance  Department , 355 

P. 

Pardon 356 

Pay  Account —  361 

Pay  and  Allowances 362 

Paymaster 372 

Paymaster's  Clerk 372 

Payi^ient  by  Mail 372 

Penitentiary 373 

Pension 373 

Peonage 374 

Perjury 374 

Plea 375 

Plea  in  Abatement « 380 

Posse  Comitatus 380 

Post  Commander 381 

Post  Trader 382 

Power  of  Attorney . .  388 

President,  I— Authority  to  convene  General 

Courts  Martial 388 


CONTENTS.  Xni 

Title.  Page. 

President,  II — Authority  over   the  Proceed- 
ings AND  Sentences  of  Courts  Martial 389 

President,  III — Authority  to  Eestore  to  the 

Army 390 

Presiding  Officer  of  the  Court 391 

Prisoner  of  War 392 

Proceedings  at  Law  against  Officer,  &c  —  -.  395 

Professor  of  the  Military  Academy 398 

Promotion 398 

Prosecutor 399 

Protest 400 

Publications  by  Officers 400 

Public  Property — Disposition  of,  &c 400 

Punish:ment 408 

Purchase 408 

Quartermaster's  Stores 409 

Quarters 409 

quitclalvi 409 

Quorum 409 

R. 

Eank , . . .  410 

EEC03OIENDATI0N 411 

Eecord 412 

Eeduction  IN  Eank  or  Files » 422 

Eeduction  to  the  Eanks,  I— Of  Commissioned 

Officer 422 

Eeduction  to  the  Eanks,  II — Of  NoN-Co]sons- 

sioNED  Officer 423 

Eegimental  and  Garrison  Courts 424 

Eegular  Army - 424 

Eelief 424 

Eemission 42G 

''  Eemoval  of  Disability" 426 

Eeporter 427 

Eeprimand 428 

Eequisition 428 

Eesidence 429 

Eesignation '  430 


XIV  CONTENTS. 

Title.  Page. 

Eestoration  of  Dismissed  Officer 431 

Eetirement 431 

EEViEwiNa  Authority 434 

Eevised  Statutes 439 

Eevision 440 

Sale,  &c.,  of  Arms,  &c.,  by  Soldiers 443 

Sale  of  Military  Stores 443 

Salyage 444 

Secretary  of  War 445 

Selection  of  Quarters 447 

Sentence  and  Punishment—in  general 447 

Sentinel 453 

Separate  Brigade 454 

Signal  Corps 454 

Solitary  Confine:ment 454 

Specification 455 

Spy 455 

Statement  of  Accused 457 

Statutes— Construction  of 458 

Stealing  ...» 464 

Stenographer 464 

Stoppage  465 

Subsistence  Stores 466 

Superintendent  of  National  Cemetery 467 

Supernumerary  List , 467 

Surgeon 468 

Suspension - 468 

T. 

Tax 472 

Trader 475 

Transportation  of  Public  Funds . .  475 

Treaty 475 

U. 

Unauthorized  Publication 476 

United  States 476 

Unliquidated  Damages  .... 476 

Usage 476 


CONTENTS.  XV 

Title.  Page. 

Variance 477 

Violation  of  the  Laws  of  War 477 

Volunteers 478 

Vote  of  the  Court 479 

W. 

War 480 

War  Power 480 

Witness ^..  ,**. 481 


ERRATA. 

Page  85.  At  end  of  §  1,  for  "authority.^"  substitute — au- 
thority 5  the  offence  being  then  completed.' 

"  350.  At  beginning  of  note,  after  "See",  insert — Daw- 
kins  V.  Ld.  Rokeby,  8  Q.  B.  255 ;  At  end  of  note 
add — But  see  dissenting  opinion  of  Miller,  J. 

"     372.  In  6th  line,  for  "pay"  substitute — payment. 

"  447.  In  4th  line  of  §  1,  after  " and"  insert — ,  (no  sentence 
having  been  adopted  by  a  majority  of  votes,). 

"     479.  In  ()th  line,  after  "became"  insert — ,  or  remained, 

"     491.  In  3d  line  of  note,  omit — "anomalous", 


NOTICE. 

The  numerals  at  the  end  of  the  separate  paragraphs,  (or 
sentences,)  of  the  text  refer  to  the  volume  and  page  of  the 
ofticial  Records  of  the  Bureau. 


A. 


ARTICLES  OF  WAR. 

[Contained  in  Sec.  1342,  Revised  Statutes.] 

SECOND  ARTICLE. 

"These  rules  and  articles  shall  be  read  to  every  enlisted  man  at  the 
time  of,  or  within  six  days  after,  his  enlistment,  and  he  shall  thereupon 
take  an  oath  or  affirmation,  in  the  following  form  :  '  I,  A.  B.,  do  solemnly 
swear  (or  affirm)  that  I  will  hear  true  faith  and  allegiance  to  the  United 
States  of  America ;  that  I  will  serve  them  honestly  and  faithfully  against 
all  their  enemies  whomsoever ;  and  that  I  will  obey  the  orders  of  the  Pres- 
ident of  the  United  States,  and  the  orders  of  the  officers  appointed  over 
me,  according  to  the  rules  and  articles  of  war.'  This  oath  may  be  taken 
before  any  commissioned  officer  of  the  Army." 

1.  The  taking  of  the  oath  prescribed  by  this  Article  is  not 
an  essential  to  the  validity  of  an  enlistment.  XXX,  313.  It 
is,  however,  an  almost  invariable  part  of  a  regular  formal  en- 
listment, and,  in  the  absence  of  any  provision  in  our  law  de- 
fining in  what  an  enlistment  shall  consist,  (see  Enli{^T31ENT, 
§  1,)  it  is  important  that  it  should  not  be  omitted,  for  the  reason 
that  the  oath  as  taken  and  subscribed  by  the  party  constitutes 
the  regular,  and,  in  the  great  majority  of  cases,  the  only,  legal 
wrritten  evidence  that  the  personal  act  of  enlisting  has  been 
completed  by  him.     XLII,  203. 

2.  The  statement  in  the  form  of  the  oath  contained  in  the 
"  enlistment  paper,"  now  in  use  in  the  Army,  to  the  effect  that 
the  party  enlisting  is  of  a  certain  age,  and  tliat  he  knows  of 
no  impediment  to  his  serving  honestly  and  faithfully  under 
his  contract,  is  no  part  of  the  oath  prescribed  by  this  xVrticle. 
and  is  thus  in  fact  immaterial  and  surplusage.     XLII,  203. 

THIRD  ARTICLE. 

"'  Every  officer  who  knowingly  enlists  or  musters  into  the  military 'serv- 
ice any  minor  over  the  age  of  sixteen  years  without  the  written  consent 
of  his  parents  or  guardians,  or  any  minor  under  the  age  of  sixteen  years, 
or  any  insane  or  intoxicated  persons,  or  any  deserter  from  the  military  or 

Id 


2  ARTICLES  OF  WAR. 

naval  service  of  the  United  States,  or  any  person  who  lias  been  convicted 
of  any  infamous  criminal  ofi'ense,  shall,  upon  conviction,  be  dismissed 
from  the  service,  or  suffer  such  other  punishment  as  court-martial  may 
direct." 

1.  Neither  this  Article,  nor  the  directory  provision  inj)an 
materia  of  Sees.  1117-1118,  Eev.  Sts.,  renders  void  enlistments 
of  the  classes  of  i^ersons  whose  enlistment  or  muster-in  is  made 
punishable  and  interdicted.  Except  of  course  in  the  case  of 
an  enlistment  of  a  i^erson  clearly  non  compos  mentis^  and  whose 
contract  is  a  nullity  in  law  independently  of  any  statute,  these 
enlistments  are  voidable  only :  the  United  States  may  hold  the 
party  to  service,  or  may  discharge  him  forthwith  in  the  man- 
ner authorized  by  the  Fourth  Article.  XXXVITI,  332; 
XXXIX,  183 ;  XLII,  30.     [See  Enlistment,  §  3.] 

2.  It  is  not  essential  to  a  conviction  under  this  Article  that 
the  officer  shall  be  shown  to  have  had  positive  and  absolute 
knowledge  that  the  person  enlisted  by  him  belonged  to  one  of 
the  classes  of  persons  whose  enlistment  is  made  an  offence. 
If  he  had  such  knowledge  or  information  as  to  place  the  ftict 
beyond  a  reasonable  doubt,  he  may  properly  be  deemed  to 
have  acted  '' knowingly."    XXXI,  342. 

3.  The  enlistment  of  a  party  who  was  evidently  so  much 
under  the  influence  of  liquor  as  to  make  it  doubtful  whether 
he  comprehended  the  legal  effect  of  his  acts,  Jield  an  enlist- 
ment of  an  ''intoxicated  person"  and  an  offence  under  this 
Article.     XXVIII,  30. 

EOUETH  ARTICLE. 

''No  enlisted  man,  duly  sworn,  shall  be  discharged  from  the  service 
without  a  discharge  in  writing,  signed  by  a  field-officer  of  the  regiment 
to  which  ho  belongs,  or  by  the  commanding  officer,  when  no  field-officer 
is  present ;  and  no  discharge  shall  be  given  to  any  enlisted  man  before  his 
term  of  service  has  expired,  except  by  order  of  the  Presideut,  the  Secre- 
tary of  War,  the  commanding  officer  of  a  dex3artment,  or  by  sentence  of  a 
general  court-martial." 

1.  While  no  soldier  can  assume  to  discharge  himself  from 
the  military  service,  he  is  yet,  at  the  exi)iration  of  his  con- 
tract of  enlistment,  entitled  in  general  to  be  at  once  formally 
discharged  by  the  proper  authority.^  In  view,  however,  of  the 
terms  of  the  lirst  clause  of  this  Article, — held  that  a  discharge 

^See  Justice  Story's  charge  to  the  jury  in  United  States  v. 
Travers,  2  Wheeler  Or.  0.,  500  j  also  rrendergast,  12. 

I 


ARTICLES   OF   WAR.  3 

of  a  soldier  actually  takes  effect,  like  a  deedj  only  upon  tlie 
delivery  of  the  written  certificate  of  discharge.  XXIX,  599. 
Thus,  where  a  soldier's  discharge  was  not  received  by  him  at 
his  station— a  hospital  in  the  field — till  at  the  end  of  three 
months  after  its  date,  held  that  it  did  not  take  effect  till  its 
receipt,  and  that  tlie  soldier  was  entitled  to  i)ay  ui^  to  that 
time.     XXVIII,  561. 

2.  A  formal  discharge,  given  to  a  soldier  in  accordance  with 
this  Article,  is  legal  evidence  of  the  fact  of  discharge,  as  well 
as  of  the  circumstances — when  the  same  are  stated — under 
which  the  soldier  was  separated  from  the  service.^  ^  XV,  250. 

3.  This  Article,  in  its  second  clause,  specifies  two  kinds  of 
discharge  as  authorized  to  be  given  to  soldiers  before  their 
terms  of  enlistment  have  expired  nud  which  are  quite  distinct 
in  their  nature.  The  one  is  given  by  executive  order  and  the 
other  by  sentence  ;  the  one  is  a  rescindiiu)  of  the  contract  of  the 
soldier,  authorized  to  be  resorted  to  whenever  deemed  desira- 
ble, at  the  discretion  of  the  Secretary  of  War,  &c.,  and  is,  in 
law,  an  honorahle  discharge;  the  other  is  a  punishment^  and 
therefore  a  dishonorable  discharge.  One  of  the  officials  named 
can,  of  his  own  authority,  no  more  order  a  soldier  to  be,  in 
terms,  dishonorably  discharged  than  can  a  court-martial 
adjudge  a  soldier  to  be  honorably  discharged.^  XIX,  321  j 
XXXIV,  358;  XXXVI,  537;  XXXVII,  230;  XXXVIII,  312; 
XLII,  311.  [See  more  fully  under  Discharge,  I,  §  1,  2.]  A 
discharge  cannot  legally  be  given  a  soldier  before  the  expira- 
tion of  his  term  of  service  except  as  authorized  in  this  Ar- 
ticle ;  and  no  officer,  other  than  the  three  designated,  can  ex- 
ercise the  authority,  expressly  devolved  upon  them,  of  dis- 
charging by  order.^    XIV,  5o. 

EIGHTH  ARTICLE. 

"Every  ofiQcer  ^vllo  knowingly  makes  a  false  retnrn  to  the  Department 
of  War,  or  to  any  of  his  superior  officers,  authorized  to  call  for  such 
returns,  of  the  state  of  the  regiment,  troop  or  company,  or  garrison  under 

^See  Board  of  Comrs. 'y.  Mertz,  27  Ind.,  103;  Hanson  v.  S. 
Scituate,  115  Mass.,  336 ;  United  States  r.  Wright,  5  Philad., 
296. 

2  A  discharge,  however,  of  the  former  class,  though  it  can 
not  operate  in  law  as  a  dishonorable  discharge,  may  set  forth 
on  its  face  the  reason  why  it  was  given  and  thus  exhibit  the 
history  of  the  action  taken.     [See  Discharge,  I,  §  2.] 

m  bpius.  of  Attys.  Gen.,  353. 


4  ARTICLES  OF  WAR. 

Jbis  comiuaud ;  or  of  tlie  arms,  ammunition,  clothing,  or  other  stores 
thereunto  belonging,  shall,  on  conviction  thereof  before  a  court-martial, 
be  cashiered." 

1.  This  Article  refers  only  to  returns  made  by  certain  com- 
manders as  such.  It  is  only  as  commander  of  a  regiment, 
company,  or  garrison  that  an  officer  can  be  made  amenable 
to  a  charge  under  the  Article :  an  of&cer  not  exercising  one  of 
these  commands  is  not  within  its  terms.^  XXX,  5985 
XXXII,  575;  XXXIII,  188. 

2.  An  officer  ^'  knowingly  makes  a  false  return"  under  this 
Article,  who  makes  a  return  which  he  knows  to  be  untrue  in 
any  material  particular.    XY,  558. 

3.  The  ''returns"  indicated  in  the  Article  can  scarcely  be 
said  to  include  returns  of  funds  ;  what  is  contemplated  being 
mainly  returns  of  the  ])ersonnel  or  malerlel  of  the  command. 
A  false  return  of  a  company  fund  would  more  properlj^  be 
charged  under  another  Article,  as  the  Gist  or  62d.  XXXYIII, 
526. 

XINTH  ARTICLE. 

"All  public  stores  taken  from  the  enemy  shall  be  secured  for  the  service 
of  the  United  States ;  and  for  neglect  thereof  the  commanding  officer  shall 
be-  answerable." 

This  provision  is  in  accordance  with  the  principle  of  the 
law  of  nations  and  of  war,  that  enemy's  property  captured 
in  war  becomes  the  property  of  the  government  or  i:>ower  by 
whose  forces  it  is  taken,  and  not  that  of  the  individuals  who 
take  it.^  "Private  persons  cannot  capture  for  their  own  ben- 
efit."^ Military  stores  taken  from  the  enemy,  becoming  upon 
capture  the  i^roperty  of  the  United  States,  Congress,  which, 
by  the  Constitution,*  is  exclusively  vested  with  the  x>ower  to 
dispose  of  the  public  property,  as  well  as  to  make  rules  con- 
cerning captures  on  land  and  water,  can  alone  authorize  the 

^See  G.  C.  M.  O.  12,  10,  War  Dept.,  1872. 

2  United  States  v.  Klein,  13  Wallace,  136;  Decatur  v. 
United  States,  Devereux,  110 ;  White  v.  Red  Chief,  1  Woods, 
40 ;  Branner  v.  Felkner,  1  Heisk.,  232  ;  Worthy  v.  Kinamon, 
44  Ga.,  299;  Huff  v.  Odom,  49  Id.,  395;  XIII  Opins.  of 
Attys.  Gen.,  105;  Hough,  (Practice,)  329,  330;  G.  O.  54, 
Hdqrs.  of  Army,  Mexico,  1848 ;  G.  O.  21,  AVar  Dept.,  1848 ; 
do.  64,  107,  Id.,  1862.  And  see  also  Lamar  v.  Browne,  2 
Otto,  195,  in  regard  to  the  same  principle  as  illustrated  by  the 
Captured  and  Abandoned  Property  Act  of  March  12, 1863. 

^  Worthv  V.  Kinamon,  supra. 

*Art.  1,'^Sec.  8,  §  11 ;  Art.  IV,  Sec.  3,  §  2. 


ARTICLES  OF  WAR.  5 

sale  or  transfer  of  the  same.  ^  An  officer  or  soldier  of  the 
Army  who  assumes  of  his  own  authority  to  appropriate 
such  articles  renders  himself  chargeable  with  a  military 
offence.^    11,  41. 

THIRTEENTH  AETIOLE. 

"  Every  officer  who  signs  a  false  certificate,  relatng  to  the  absence  or 
pay  of  an  officer  or  soldier,  shall  be  dismissed  from  the  service." 

It  will  not  be  a  sufficient  defence  to  a  charge  under  this 
Article,  that  the  accused  believed  the  certificate  signed  by  him 
to  be  true,  if  it  was  false  in  fact.^  But  Jield  that  the  mere 
signing,  by  an  officer,  of  a  voucher  for  his  pay,  before  the  last 
day  of  the  month  for  which  it  was  due,  did  not  constitute  an 
offence  of  the  class  intended  to  be  made  punishable  by  this 
Article.^    XXXIII,  333. 

SEVEXTEEXTH  AETIGLE : 

''Any  soldier  who  sells  or,  through  neglect,  loses  or  spoils  his  horse, 
arms,  clothing,  or  accoiiterments,  shall  suffer  such  stoppages,  not  exceed- 
ing one-half  of  his  current  pay,  as  a  court-martial  may  deem  sufficient 
for  repairing  the  loss  or  damage,  and  shall  be  punished  by  confinement 
or  such  other  corporal  punishment  as  the  court  may  direct." 

1.  This  Article  contains  two  distinct  provisions — 1st,  that 
the  offender  shall  be  subjected  to  a  certain  stoppage^  proper 
and  sufficient  to  reimburse  the  United  States  for  the  loss  or 
damage  caused  by  him,  the  amount  of  which  shall  be  ascer- 
tained and  fixed  by  the  court :  2d,  that  he  shall  be  punished 

^  The  authority  has  been  most  rarely  exercised  by  Congress 
of  granting  property  captured  from  the  enemy,  or  its  value, 
to  the  military.  An  early  instance,  however,  is  found  in  the 
resolve  of  Congress  of  July,  1779: — '"That  the  value  of  the 
military  stores  taken,"  upon  the  capture  of  Stony  Point,  "be 
ascertained  and  divided  among  the  gallant  troops  by  whom  it 
was  reduced,  in  such  manner  and  i:)roportion  as  the  commander- 
in-chief  shall  prescribe."     Ill  Journals  of  Congress,  329. 

In  an  exceptional  General  Order  of  the  Dept.  of  the 
Missouri,  (Xo.  21G  of  18G4,)  certain  property  taken  from  the 
enemj"  is  directed  to  be  distributed  among  the  militia  making 
the  capture,  as  follows : — "  The  horse  ridden  by  Bill  Anderson, 
and  the  watches  and  arms  taken,  will  be  given  to  the  several 
officers  of  the  command,  to  be  retained  as  honorable  trophies. 
The  money  cai)tured  will  be  given,  in  just  proportions,  to  the 
wounded  of  the  command  and  to  the  families  of  such  as  were 
killed  in  the  affair." 

-  See,  in  this  connection.  Sec.  5313  Eev.  Sts. 

^^ Samuel,  298.     And  see  O'Brien,  302. 

*See  G.  C.  M.  O.  28,  War  Dept.,  1872. 


6  ARTICLES  OF  WAR. 

as  the  court  may  direct.  The  stoppage  is  wholly  distinct 
from  and  indei^endent  of  the  punishment^  and  should  form  no 
part  whatever  of  the  sentence.  The  stoppage  is  the  enforce- 
ment of  a  civil  liability  to  the  United  States,  assessed  by 
the  court  rather  in  the  cai)acity  of  a  board :  the  i)unishment 
is  the  criminal  judgment  for  the  offence.  These  two  func- 
tions of  the  court,  (both  of  which  are  made  imijerative  upon 
it  by  the  Article,)  being  thus  distinct,  it  follows  that  a  regi- 
mental or  garrison  court-martial  has,  equally  v/ith  a  general 
court,  cognizance  of  an  offence  under  this  Article,  however 
great  the  amount  of  the  stoppage  proper  to  be  assessed  for  the 
loss  or  damage,  for  it  is  only  in  imposing  the  punishment  for 
the  offense  that  the  inferior  court  is  restricted  by  the  limita- 
tions of  Article  83.  Naturally,  however,  where  the  amount 
of  damage  is  very  considerable,  a  general  court  will  be  re- 
sorted to.  Where  a  court,  general  or  inferior,  imposes  the 
stoi)page  as  i)art  of  the  punishment,  or  confounds  punish- 
ment and  stoppage  together,  the  procedings  will  properly 
be  returned  to  it  for  revision.  XXXI,  27  5  XXXY,  457  5 
XXXVIII,  474,  549. 

2.  This  article  does  not  do  away  with  the  provision  of  the 
first  sentence  of  Par.  1027  of  the  Army  Eegulations ;  that  pro- 
vision being  applicable  to  cases  where  it  is  not  desired  or  re- 
quired to  convene  a  court- niartial.  In  such  cases  a  board  of 
survey  is  ordered  for  the  purpose  of  assessing  the  damage : 
w^here  a  trial  is  resorted  to,  the  court,  incidentally,  acts  in 
a  capacity  similar  to  that  of  a  board  of  survey  for  the  same 
purpose.^'    XXXVII,  352. 

3.  The  description,  ''  his  horse,  arms,  clothing,"  &c.,  refers 
to  articles  which  are  regularly  issued  to  the  soldier  for  his 
use  in  the  service  and  with  the  safe-keeping  of  which  he  is 
charged.  It  does  not  contemplate  things  which  are  his  abso- 
lute property .2    XXXVIII,  549. 

4.  Imi^roper  disi)Ositions  of  property  in  the  charge  and  use 

^  Where  a  trial  is  had,  the  proceedings  of  aboard  of  survey, 
already  ordered  in  the  same  case,  will  not  be  competent  evi- 
dence to  prove  the  fact  of  the  loss,  &c.,  charged.  Gr.  C.  M.  O. 
45,  Dei)t.  of  the  Missouri,  1877 ;  do.  15,  Dept.  of  Texas,  1877. 
And  see  Evidence,  §  7. 

^Compare  ruling  of  reviewing  officer  in  G.  O.  35,  Dept.  of 
the  East,  18G9 ;  and  see  also  do.  31,  Bept.  of  the  South,  1877; 
G.  0.  M.  O.  15,  Dei)t.  of  Texas,  1880.     See,  further,  note  to 

EORTY-SECOND  ARTICLE,  §  2. 


ARTICLES   OF   WAR.  7 

of  soldiers,  other  than  those  indicated  in  the  Article,  will  in 
general  properly  be  charged  under  Art.  02.^    XX,  200. 

OTNETEEXTH  AETIGLE. 

''Any  officer  who  uses  contemptuous  or  disrespectful  words  against  the 
President,  the  Vice-President,  the  Congress  of  the  United  States,  or  the 
chief  magistrate  or  legislature  of  any  of  the  United  States  in  which  he  is 
quartered,  shall  be  dismissed  from  the  service,  or  otherwise  punished,  as 
a  court-martial  may  direct.  Any  soldier  who  so  oifends  shall  be  punished 
as  a  court-martial  may  direct. 

When  a  trial  of  an  oflicer  or  soldier  has  been  resorted  to 
under  this  Article,  it  has  usuallj^  been  on  account  of  the  use 
of  "  contenii^tuous  or  disrespectful  words  against  the  Presi- 
dent," or  the  government  mainly  as  represented  by  the  Pres- 
ident. The  deliberate  employment  of  denunciatory  or  con- 
tumelious language  in  regard  to  the  President,  whether  spoken 
in  public,  or  published,  or  conveyed  in  a  communication 
designed  to  be  made  public,  has,  in  repeated  cases,  been  made 
the  subject  of  charges  and  trial  under  this  Article^;  and, 
where  taking  the  form  of  a  hostile  arraignment,  by  an  officer, 
of  the  President  or  his  administration,  for  the  measures 
adopted  in  carrying  on  the  late  war, — a  juncture  when  a  pecul- 
iar obedience  and  deference  were  due,  on  the  part  of  the 
subordinate,  to  the  President  as  Executive  and  Commander- 
in-Chief, — was  in  general  punished  by  a  sentence  of  dis- 
missal. I,  78;  Y,  491;  XVIII,  592;  XX,  516.  On  the  other 
hand,  it  was  held  that  adverse  criticisms  of  the  acts  of  the 
President,  occurring  m  political  discussions,  and  which,  though 
characterized  by  intemperate  language,  were  not  apparently 
intended  to  be  disrespectful  to  the  President  person alK  or  to 
his  office,  or  to  excite  animosity  against  him,  were  not  in  gen- 
eral to  be  regarded  as  properly  exi^osing  officers  or  soldiers  to 
trial  under  this  Article.  To  seek  indeed  for  ground  of  oftence 
in  such  discussions  would  ordinarily  be  inquisitorial  and 
beneath  the  dignity  of  the  government.     Y,  491. 

^  As  the  pawning  of  a  revolver.  G.  C.  M.  0. 77,  Dept.  of  the 
Missouri,  1874.  So,  the  gambling  away  of  clothing.  G.  C.  M. 
O.  41,  Dept.  of  Texas,  1873.  So,  the  spoihng  bv  a  bugler  of 
his  bugle.     G.  C.  M.  O.  36,  War  Dept.,  1876. 

•^See  cases  in  G.  C.  M.  O.  43,  War  Dept.,  1863;  G.  O.  171, 
Army  of  the  Potomac,  1862;  do.  23,  Id.,  1863;  do.  52,  Middle 
Dept.,  1863  ;  do.  119,  Dept.  of  the  Ohio,  1863;  do.  33,  Dept.  of 
the  Gulf,  1863;  do.  6S,  Dept.  of  Washington,  1864;  do.  S6, 
Northern  Dept.,  1864 ;  do.  1,  Id.,  1865 ;  do.  29,  Dept.  of  Xo. 
Ca.,  1865. 


8  ARTICLES   OF   WAR. 

TWENTIETH  ARTICLE. 

"Any  officer  or  soldier  who  behaves  himself  with  disrespect  toward  his 
commanding  officer  shall  be  punished  as  a  court-martial  may  direct." 

1.  The  disrespect  here  indicated  may  consist  in  acts  or 
wbids;^  and  the  particular  acts  or  words  relied  ui^on  as  con- 
stituting the  offence  should  properly  be  set  forth  in  substance 
in  the  specification.^  It  must  be  shown  in  evidence  under  the 
charge  that  the  officer  offended  against  was  the  "  command- 
ing officer"  of  the  accused.^  The  commanding  officer  of  an 
officer  or  soldier,  in  the  sense  of  this  Article,  is  properly  the 
superior  who  is  authorized  to  require  obedience  to  his  orders 
from  such  officer  or  soldier,  at  least  for  the  time  being.  Thus 
where  a  battalion  was  temporarily^  detached  from  a  regiment 
and  placed  under  the  orders  of  the  commander  of  a  portion  of 
the  Army  distinct  from  that  in  which  the  main  part  of  the 
regiment  was  included,  held  that  it  was  the  commander  of  this 
portion  who  was  the  commanding  officer  of  the  detachment ; 
and  that  the  use  by  an  officer  of  such  detachment  of  disre- 
spectful language  in  reference  to  the  regimental  commander, 
(who  had  remained  with  and  in  command  of  the  main  body 
of  the  regiment,)  was  properly  chargeable  not  under  this  Arti- 
cle, but  rather  under  the  G2d.     XVIII,  407. 

2.  Held  that  disrespectful  language  used  in  regard  to  his 
captain  by  a  soldier,  when  detached  from  his  company  and 
serving  at  a  hospital,  to  the  surgeon  in  charge  of  which  he 
had  been  ordered  to  report  for  duty,  was  an  offence  cogniza- 
ble b3^  court-martial,  not  under  this  Article  but  under  Art.  62. 
VI,  53. 

TWENTY-FIRST  ARTICLE. 

''Any  officer  or  soldier  who,  on  any  iiretense  whatsoever,  strikes  his  su- 
perior officer,  or  draws  or  lifts  uj)  any  weapon,  or  offers  any  violence 
against  him,  being  in  the  execution  of  his  office,  or  disobeys  any  lawful 
command  of  his  superior  officer,  sliall  suffer  death,  or  such  other  punish- 
ment as  a  court-martial  may  direct." 

1.  To  justify  a  conviction  of  the  capital  offence  of  offering 
violence  against  a  superior  officer,  it  should  be  made  to  ap- 
pear in  evidence  that  the  accused  knew  or  believed  that  the 

'G.  O.  44,  Dept.  of  Dakota,  1872.     And  see  G.  C.  M.  O. 
28,  War  Dept.,  1875 ;  G.  O.  47,  Dept.  of  tlie  Platte,  1870. 
^G.  C.  M.  O.  35,  Dept.  of  the  Missouri,  1872. 
^G.  O.  53,  Dept.  of  Dakota,  1871. 


ARTICLES   OF  WAR.  9 

person  assaulted  was  in  fact  an  officer  of  the  Armj^  and  was 
his  *'  sui)erior  '^  in  rank.^     XXIX,  485. 

2.  Under  a  charge  of  a  violation  of  this  Article,  in  offering 
violence  to  a  superior  officer,  it  should  be  alleged  and  proved 
that  tbe  officer  assaulted  was  at  the  time  "  in  the  execution 
of  his  office."     I,  4G2 ;  IX,  90. 

3.  Jle/cZ  that  in  charging  a  striking  or  doing  of  violence  to 
a  sui^erior  officer  under  this  Article,  m  a  case  where  the  assault 
wasfatal,  it  was  aHowable  to  add  in  the  specification,  "  thereby 
causing  his  death,"  as  indicating  the  probable  measure  of  \io- 
lence  employed.    XXIX,  485. 

4.  The  "superior  officer"  in  the  sense  of  this  Article,  need 
not  necessarily  have  been  the  commanding  officer  of  the  ac- 
cused at  the  time  of  the  offence.  The  article  is  thus  broader 
than  Art.  20,  which  relates  only  to  an  offence  against  a  "  com- 
manding officer."  2    XIX,  248. 

5.  Where  an  inferior  officer  was  charged  with  having  dis- 
obeyed an  order  given  him  on  the  spot  by  a  superior  officer; 
held  that  it  should  be  made  to  api^ear  in  proof  that  the  latter, 
if  not  i)ersonally  known  to  the  accused  to  be  his  superior  offi- 
cer, was  recognizable  as  such  by  his  uniform  or  otherwise. 
XYI,  604. 

6.  A  non-compliance  by  a  soldier  with  an  order  emanating 
from  a  non-commissioned  officer,  is  not  an  offence  under  this 
Article,  but  one  to  be  charged,  in  general,  under  the  G2d.^ 
XI,  491. 

7.  Under  a  charge  of  a  disobedience  of  the  order  of  a  supe- 
rior officer  in  violation  of  this  Article,  it  should  be  alleged, 
and  should  api^ear  from  the  evidence  introduced,  that  the 
order  or  "  command  "  was  "  lawful."  XXYII,  488.  An  officer 
or  soldier  is  not  punishable  for  disobeying  an  unlaicfid  order. 
XXYI,  003.  But  the  order  of  a  proper  superior  is  to  be  i)re- 
sumed  to  be  lawful,  and  should  be  obeyed,  where  it  is  not 
clearly  and  obviously  in  contravention  of  law,  or  existing 
orders,  or  the  established  usage  of  the  service.  And  an  in- 
ferior will  in  general  not  be  held  civilly  liable  for  an  injurious 

'  See  G.  O.  34,  Dept.  of  Virginia,  1SG3. 

2  See  G.  O.  7,  Dept.  of  the  Missouri,  1807. 

^  See  the  provision,  introductory  to  the  Articles  of  War,  of 
Sec.  1342,  Eev.  Sts.,  in  which  it  is  specified  that  "  the  word 
officer,  as  used  therein,  shall  be  understood  to  designate  com- 
missioned officers." 


10  ARTICLES  OF  WAR. 

consequence  of  his  execution  of  an  order  of  a  superior,  unless 
the  same  was  palpably  illegal  on  its  face.^  [See  Order,  I  §  6.] 
But  a  military  inferior  in  refusing"  or  failing  to  compty  with 
the  order  of  a  superior  on  the  ground  that  the  same  is,  in  his 
opinion,  unlawful,  does  so,  of  course,  on  his  own  personal 
responsibility^  and  at  his  own  risk.     XXYI,  25G. 

8.  Held  that  a  member  of  a  post  band  who  refused,  (re- 
spectfully,) to  obey  an  order  of  the  post  commander  directing 
the  band  to  play  in  a  town  in  the  neighborhood  of  the  post 
for  the  pleasure  of  the  inhabitants,  was  not  chargeable  with 
a  military  offence  j  such  an  order  not  being  a  '^  lawful  com- 
mand" in  the  sense  of  this  Article.  XXVII,  520.  So  held 
that  a  soldier  was  not  chargeable  with  *' disobedience  of 
orders "  in  not  complying  witli  an  order  forbidding  him  to 
contract  marriage,  (XXXVIII,  47 — see  Marriage  5)  and 
similarly  lield  of  a  refusal  by  a  soldier  to  comply  with  an 
order,  (in  violation  of  Sec.  1232,  Rev.  Sts.,)  to  act  as  an  offi- 
cer's servant.^    XLIV,  80. 

9.  The  oifence  of  disobedience  of  orders  contemjdated  by 
this  Article,  consists  in  a  refusal  or  neglect  to  comply  with  a 
specific  order  to  do  or  not  to  do  a  particular  thing.  A  mere 
failure  to  perform  a  routine  duty  is  properly  charged  under 
Art.  G2.=^  XXXIII,  280.  Where  an  officer  neglected  fully  to 
I^erform  his  duty  under  general  instructions  given  him  in 
regard  to  the  conduct  of  an  expedition  against  Indians;  held 
that  his  offence  was  properly  chargeable  not  under  the  21st 
but  under  the  G2d  Article.     XXXVIII,  454. 

10.  An  officer  or  soldier  on  leave  of  absence  cannot  in  gen- 
eral be  made  liable  to  a  charge  of  disobedience  of  orders,  ex- 
cept indeed  where  required  by  a  positive  order,  issued  on 
account  of  a  public  emergency,  to  return  before  his  leave 
is  expired,  and  failing  to  comx)ly  with  such  requirement. 
XXXIX,  340. 

^  See  Despan  v.  Olney,  1  Curtis  0.  0.  309 ;  Iliggs  v.  Stat'eJ 
3  Cold.  ?>:)',  Slate  v.  Sparks,  27  Texas,  G32 ;  Trammell  v.  Bas- 
sett,  24  Ark.  499,  and  other  cases  cited  under  Order,  I  §  6. 

^  So  where  a  soldier  was  convicted  of  a  disobedience  of  or- 
ders in  refusing  to  assist  in  buildiug  a  private  stable  for  an 
ofOcer,  the  finding  was  disapproved  on  the  ground  that  such 
an  order  was  not  a  lawful  one.  G.  C.  ]\1.  O.  130,  Dept.  of 
Dakota,  1879. 

=^See  G.  C.  M.  O.  20,  War  Dept.  1872  ;  do.  7,  Dept.  of  Texas, 
1874  J  G.  O.  24,  35,  Fifth  Mil.  Dist.  1808. 


ARTICLES  OF  WAR.  11 

TWENTY-SECOIs'D  ARTICLE. 

"Any  officer  or  soldier  who  begins,  excites,  causes,  or  joins  in  any  mu- 
tiny or  sedition,  in  any  troop,  battery,  company,  party,  post,  detachment, 
or  guard,  shall  sulfer  death,  or  such  other  punishment  as  a  court-martial 
may  direct." 

1.  Mutiny  at  military  law  maybe  defined  to  be  an  unlawfi.l 
opposing  or  resisting  of  lawful  military  autliority,  with  intent 
to  subvert  the  same,  or  to  nullify  or  neutralize  it  for  the  time.^ 
It  is  this  intent  which  distinguishes  mutiny  from  other  offences, 
and  especially  from  those,  with  which,  to  the  embarrassment 
of  the  student,  it  has  frequently  been  confused,  viz :  those 
punishable  by  the  21st  Article,  as  also  those  which,  under 
the  name  of  "mutinous  conduct,"  are  merely  forms  of  viola- 
tion of  x^rt.  02.  The  offences  made  punishable  by  this  Arti- 
cle are  not  necessarily  "  aggregate"  offences :  ^  among  them  is 
the  heglnning  or  causing  of  a  mutiny — which  may  be  committed 
by  a  single  person.  In  general,  however,  the  offence  here 
charged  will  be  a  concerted  proceeding ;  the  concert  itself 
going  far  to  establish  the  intent  necessary  to  the  legal  crime. 

To  charge  as  a  capital  offence  under  this  Article  a  mere  act 
of  insubordination  or  disorderly  conduct  on  the  part  of  an  in- 
dividual soldier  or  officer,  unaccompanied  by  the  intent  above 
indicated,  is  irregular  and  improper.^  Such  an  act  should  in 
general  be  charged  under  Art.  20,  21,  or  G2.  XXIX,  571 ; 
XXXYIII,  199. 

2.  Where  a  body  of  soldiers,  under  the  reasonable  but  er- 
roneous belief  that  their  legal  term  of  service  had  fully  ex- 
l)ired,  quietly  stacked  their  arms  and  refused  to  fall  in  and 
march  when  ordered  to  do  so  by  their  commanding  officer, 
and  having  been  brought  to  trial  on  a  charge  of  mutiny,  were 
found  by  the  court  not  guilty  of  that  charge  but  guilty  only 
of  "conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline," (see  Finding  §  10,)  and  were  moderately  sentenced; 

'  Compare  the  definition  and  description  of  mutiny  or  revolt 
at  maritime  law,  in  United  States  r.  Smith,  1  Mason,  147; 
United  States  v.  Haines,  5  Id.  27G;  United  States  i\  Kelly, 
4  Wash.  52S;  United  States  v.  Thompson,  1  Sumner,  171; 
United  States  v.  Borden,  1  Sprague,  370. 

-Samuel,  254,257;  G.  O.  77,  W\ar  Dept.,  1837;  do.  10,  Dept. 
of  the  Missouri,  1803. 

^  See  G.  O.  7,  War  Dept.  1848 ;  do.  115,  Dept.  of  Washington, 
1805 ;  G.  C.  M.  0. 73,  Dept.  of  the  Missouri,  1873.  And  compare 
United  States  r.  Smith,  1  Mason,  147;  United  States  v.  Kelly, 
4  Wash.  528;  United  States  v.  Thompson,  1  Sumner,  171. 


12  ARTICLES  OF  WAR. 

advised  that  tliis  was,  on  the  whole,  a  wise  judgment,  and 
would  properly  be  apjjroved  by  the  reviewing  authority. 
XXXY,  386. 

3.  Soldiers  cannot  properly  be  charged  with  the  offence  of 
joining  in  a  mutiny  under  this  Article,  where  their  act  con- 
sists in  refusing,  in  combination,  to  comply  with  an  unlawful 
order.  Thus  where  a  detachment  of  volunteer  soldiers,  who, 
under  and  by  virtue  of  Acts  of  Congress  speciallj^  authorizing 
the  enlistment  of  volunteers  for  the  purpose  of  the  supi^res- 
sion  of  the  rebellion,  and  with  the  full  understanding  on  their 
part,  and  that  of  the  officers  by  whom  they  were  mustered 
into  the  service,  that  they  were  to  be  employed  solely  for  this 
purpose,  entered  into  enlistments  expressed  in  terms  to  be 
for  the  war,  and  after  doing  faithful  service  during  the  war, 
and  just  before  the  legal  end  of  the  war,  but  when  it  was 
l^ractically  terminated,  and  when  the  volunteer  organizations 
were  being  mustered  out  as  no  longer  required  for  the  prose- 
cution of  the  war,  were  ordered  to  march  to  the  plains,  and 
to  a  region'  far  distant  from  the  theatre  of  the  late  war,  and 
engage  in  fighting  Indians,  wholly  unconnected  as  allies  or 
otherwise  with  the  recent  enemy  5  and  thereui:>on  refused,  to- 
gether, to  comi)ly  with  such  orders, — held  that  they  Avere  not 
chargeable  with  mutiny.  While  by  the  strict  letter  of  their 
contracts  they  were  subject  to  be  employed  upon  any  mili- 
tary service  up  to  the  last  day  of  their  terms  qf  enlistment, 
the  public  acts  and  history  of  the  time  made  it  perfectly 
clear  that  this  enlistment  was  entered  into  for  the  particu- 
lar purpose  and  in  contemx)lation  of  the  i)articular  serv- 
ice above  indicated,  and  to  treat  the  parties  as  bound  to 
another  and  distinct  service,  and  liable  to  capital  punishment 
if  they  refused  to  perform  it,  was  technical,  unjust,  and  in 
substance  illegal.    XLII,  524. 

4.  In  a  case  where  a  brief  mutiny  among  certain  soldiers  of 
a  colored  regiment  was  clearly  provoked  by  inexcusable  vio- 
lence on  the  part  of  their  officer  j  the  outbreak  not  having 
been  j)remeditated,  and  the  men  having  been,  prior  thereto, 
subordinate  and  well  conducted ;  advised  that  a  sentence  of 
death  imposed  by  a  court-martial  upon  one  of  the  alleged 
mutineers  should  be  mitigated,  and  the  officer  himself  brought 
to  trial.  XXVI,  G4.  Similarly  advised  in  the  cases  of  sen- 
tences of  long  terms  of  imi)risonment  imposed  ui)on  sundry 


ARTICLES   OF  WAR.  13 

colored  soldiers,  who,  (witbout  previous  purpose  of  revolt,) 
bad  been  provoked  into  momentary  mutinous  conduct  by  tbe 
recklessness  of  tbeir  oificer  in  firing  ui)on  them,  and  wounding 
several,  in  order  to  sui)i)ress  certain  insubordination  which 
might  api)arently  have  been  quelled  by  ordinary  methods.^ 
XXY,  51,  75,  ICO. 

TWENTY-rOUETH  ARTICLE.  ^ 

"All  officers,  of  what  condition  soever,  ha.vo  power  to  part  and  quell 
all  quarrels,  frays,  and  disorders,  whether  among  persons  belonging  to  his 
own  or  to  another  corps,  regiment,  troop,  battery,  or  company,  and  to 
order  officers  into  arrest,  and  non-commissioned  officers  and  soldiers  into 
confinement,  who  talve  part  in  the  same,  until  their  proper  superior  offi- 
cer is  acquainted  therewith.  And  whosoever,  being  so  ordered,  refuses 
to  obey  such  officer  or  non-commissioned  officer,  or  draws  a  weapon  upon 
him,  shall  be  punished  as  a  court-martial  may  direct." 

TWENTY-FIFTH  ARTICLE. 

"ISO  officer  or  soldier  shall  use  any  reproachful  or  provoking  speeches  or 
gestures  to  another.  Any  officer  who  so  offends  shall  be  put  in  arrest. 
Any  soldier  who  so  offends  shall  be  confined,  and  required  to  ask  j)ardou 
of  the  party  offended,  in  the  presence  of  his  commanding  officer." 

This  article  confers  no  jurisdiction  or  power  to  punish  on 
courts-martial,  but  merely  authorizes  the  taking  of  certain 
measures  oi prevention  and  restraint  by  commanding  officers  j 
i.  e.,  measures  preventive  of  serious  disorders  such  as  are 
indicated  in  the  two  following  articles  relating  to  duels.^ 
XXYIII,  G50. 

*  Compare  cases  in  G.  O.  12,  War  Dept.,  1855  j  do.  101,  Id., 
18G3 ;  G.  C.  M.  O.  50,  Hdqrs.  of  Army,  18G7. 

2  It  is  a  principle  of  the  common  law  that  any  bystander 
may  and  should  arrest  an  aflrayer.  [1  Hawkins,  P.  C,  c.  03, 
s.  11;  Timothy  v.  Simpson,  1  C.  M.  &  R.  7G2,  7G5;  Phillips 
V.  Trull,  11  Johns.  187.]  And  that  an  officer  or  soldier,  by 
entenng  the  military  service,  does  not^  cease  to  be  a  citizen, 
and  as  a  citizen  is  authorized  and  bound  to  put  a  stoj)  to  a 
breach  of  the  i)eace  committed  in  his  presence,  has  been  spe- 
cifically held  by  the  authorities.  [Burdett  v.  Abbott,  4  Taunt. 
419 ;  Bowyer,  Com.  on  Const.  L.  of  Eng.  499 ;  Simmons,  § 
109G-1100.]  This  Article  is  thus  an  application  of  an  estab- 
lished common  law  doctrine  to  the  rehitions  of  the  military 
service.  [See  its  application  illustrated  in  the  following  Gen- 
eral Orders :  G.  O,  4,  War  Dept.,  1813 ;  do.  G3,  Dept.  of  the 
Tennessee,  18G3;  do.  104,  Dept.  of  the  Missouri,  1863 ;  do.  52, 
Dept.  of  the  South,  1871;  do.  92,  Id.,  1872.] 

^  Compare  Samuel,  372. 


14  ARTICLES   OF  WAE. 

TVv^EXTY-SIXTH  AETICLE. 

"  No  officer  or  soldier  shall  send  a  cliallenge  to  another  officer  or  soldier 
to  fight  a  duel,  or  accept  a  challenge  so  sent.  Any  officer  who  so  offends 
shall  he  dismissed  from  the  service.  Any  soldier  who  so  offends  shall 
siiffer  such  corporal  punishment  as  a  court-martial  may  direct." 

To  establish  that  a  clialleuge  was  sent,  there  must  ai^pear 
to  have  been  communicated  by  one  party  to  the  other  a  de- 
liberate invitation  in  terms  or  in  substance  to  engage  in  a 
X)ersonal  combat  with  deadly  weapons,  with  a  view  of  obtain- 
ing satisfaction  for  wounded  honor.^  The  expression  merely 
of  a  willingness  to  fight,  or  the  use  simply  of  language  of 
hostility  or  defiance,  will  not  amount  to  a  challenge.  On  the 
other  hand,  though  the  language  employed  be  couched  in 
ambiguous  terms,  with  a  view  to  the  evasion  of  the  legal  con- 
sequences, yet  if  the  intention  to  invite  to  a  duel  is  reason- 
ably to  be  implied, — and,  ordinarilj^,  notwithstanding  the 
stilted  and  obscure  verbiage  employed,  this  intent  is  quite 
transparent, — a  challenge  will  be  deemed  to  have  been  given. 
And  the  intention  of  the  message,  where  doubtful  upon  its 
face,  may  be  illustrated  in  evidence  by  proof  of  the  circum- 
stances under  which  it  was  sent,  and  especially  of  the  jn^evious 
relations  of  the  parties,  the  contents  of  other  communications 
between  them  on  the  same  subject,  &c.^  And  technical  words 
in  an  alleged  challenge  may  be  explained  by  a  reference  to 
the  so-called  duelling  code.^ 

It  may  be  noted  that  our  Articles  of  War,  unlike  the  Brit- 
ish, fail  to  make  i)unishable,  as  a  specific  military  ofience, 
the  engaging  in  a  duel.  Such  an  act,  therefore,  would,  as  such, 
be  in  general  chargeable  only  under  Art.  62.    XXXIX,  247. 

^Compare  the  definition  in  2  Wharton,  Or.  L.  §  2074-2679. 

2  On  the  general  subject  of  challenges,  and  the  question 
what  constitutes  a  challenge,  see  the  principal  cases  of  the 
sending  of  challenges^  in  our  service,  as  published  in  G.  O. 
64,  A.  G.  O.,  1827  ;  do.  39,  41,  Id.,  1835  ;  do.  2,  War  Dept., 
1858;  do.  330,  Id.,  1863;  do.  11,  Army  of  the  Potomac,  1861; 
do.  46,  Dept.  of  the  Gulf,  1863 ;  do.  223,  Dept.  of  the  Missouri, 
1864;  do.  130,  Id.,  1872;  do.  33,  Dept.  &  Army  of  the 
Tennessee,  1864.  And  comi)are  Commonwealth  v.  Levy,  2 
Wheeler,  Cr.  C.  245 ;  Do.  v.  Tibbs,  1  Dana,  524  ;  Do.  v.  Hart, 
6  J.  J.  Marsh,  119;  State  v.  Taylor,  1  So.  Ca.,  108;  Do.  v. 
Strickland,  2  Nott  &  McCord,  181 ;  Ivey  r.  State,  12  Ala., 
277;  Aulger  v.  People,  34  Ills.,  486,  2  Bishop,  Cr.  L.  §  314; 
Saumel,  381-387. 

^  State  V.  Gibbons,  1  South.  51. 


ARTICLES  OF  WAR.  15 

THIRTIETH  ARTICLE. 

''Any  soldier  who  thinks  himself  wronged  by  any  officer  may  complain 
to  the  commanding  officer  of  his  regiment,  who  shall  summon  a  regimental 
court-martial  for  the  doing  of  justice  to  the  complainant.  Either  party 
may  appeal  from  such  regimental  court-martial  to  a  general  court -mar- 
tial ;  hut  if,  upon  such  second  hearing,  the  appeal  appears  to  be  ground- 
less and  vexatious,  the  party  appealing  shall  bo  punished  at  the  discre- 
tion of  said  general  court-martial." 

1.  Tbis  Article  is  not  inconvsistent  with  Art.  83,  which 
prohibits  regimental  courts  from  trying  commissioned  officers. 
It  does  not  contemplate  or  i:)rovide  for  a  trial  of  an  officer  as  an 
accused^  but  simply  an  investigation  and  adjustment  of  some 
matter  in  dispute — as,  for  examj^le,  a  question  of  accounta- 
bility for  public  property,  of  right  to  pay  or  to  an  allowance, 
of  relief  from  a  stoppage,  &c.  The  regimental  court  does  not 
really  act  as  a  court  bat  as  a  board,  and  the  ''api)eal"  au- 
thorized is  practically  from  one  board  to  another.^  But 
though  the  regimental  court  has  no  power  to  find  "•  guilty" 
or  ''not  guilty,"  or  to  sentence,  it  should  come  to  some  defi- 
nite opinion  or  conclusion — one  sufficiently  specific  to  allow 
of  its  being  intelligently  reviewed  by  the  general  court,  if 
desired.  XXIII,  G31 ;  XXVIII,  113;  XXIX,  227  j  XXX, 
81 ;  XXXII,  588. 

2.  The  proceeding  under  this  Article,  not  being  a  trials  is 
not  affected  by  the  limitation  of  the  103d  Article.  Due  dili- 
gence, however,  should  be  exercised  in  i^resenting  the  com- 
plaint, and  a  delay  in  a  certain  case  to  do  so  for  three  years, 
(not  satisfactorily  explained,)  held  wholly  unreasonable  and 
properly  treated  by  the  court  as  seriously  prejudicing  the 
complaint.     XXXI,  452. 

3.  The  authority  to  summon  a  regimental  court  under  this 
Article  is  vested  in  terms  in  the  regimental  commander.  A 
department  or  other  superior  commander  cannot  properly 
exercise  such  authority,  nor  will  his  order  add  to  the  validity 
or  effect  of  the  i^roceeding.    XXIX,  227. 

4.  The  court  caniiot  take  cognizance  of  a  comi)laint  against 
an  officer  no  longer  in  the  service.  So,  where  a  company  com- 
mander, having  entered  on  the  pay-rolls  an  unauthorized 
stoppage  against  a  soldier,  had  resigned,  and  the  same  stop- 
page was  thereupon  continued  by  his  successor:  held  that 

^See  Macomb  §103,  194;  G.  O.  13,  War  Dept.,  1813  j  I 
Opins.  of  Attys.  Gen.  1G7. 


16  ARTICLES   OF   WAR. 

the  complaint  should  be  i^resented  against  the  hitter.   XXXV, 
332. 

5.  Where  the  alleged  wrong  was  charged  upon  certain  offi- 
cers' servants,  and  it  did  not  appear  that  their  acts  were 
authorized  or  sanctioned  by  the  officers  who  employed  them, 
lield  that  the  complaint  was  not  one  which  could  be  taken 
cognizance  of  under  this  Article.     XXIII,  631. 

THIRTY-EIGHTH  AETICLE.^ 

"Any  officer  who  is  found  drunk  on  liis  guard,  party,  or  other  duty, 
shall  he  dismissed  from  the  service.  Any  soldier  who  so  oifends  shall 
suffer  such  corporal  punishment  as  a  court-martial  may  direct." 

1.  Reld  that  a  soldier  found  drunk  when  on  duty  was  prop- 
erly convicted  under  this  Article,  though  his  drunkenness 
actually  commenced  before  he  went  on  the  duty ;  his  condi- 
tion not  being  perceived  till  some  time  after  he  had  entered 
upon  the  same.  While  it  is  in  itself  an  offence  knowingly  to 
allow  a  soldier  to  go  on  duty  when  under  the  influence  of  intox- 
icating liquor,  yet  if  a  soldier  is  placed  on  duty  while  par- 
tially under  this  influence  but  without  the  fact  being  detected, 
and  his  drunkenness  continues  and  is  discovered  while  he 
remains  upon  the  duty,  he  is  strictly  amenable  under  this 
Article,  which  prescribes  not  that  the  party  shall  become 
drunk,  but  that  he  shall  be  ''found  drunV^  on  duty.^  XXXI, 
3li4. 

2.  A  charge  of  drunkenness  on  duty,  (drill,)  held  not  sus- 
tained where  the  party  was  found  drunk,  not  at  or  during 
the  drill,  but  at  the  hour  appointed  for  the  drill,  which,  how- 
ever, by  reason  of  his  drunkenness,  he  did  not  enter  upon  or 
attend.  The  charge  should  properly  have  been  laid  under 
Art.  62.     XXXIX,  226. 

3.  An  officer  reporting  in  i)erson  drunk,  upon  his  arrival 
at  a  post,  to  the  commander  of  which  he  had  been  ordered  to 
report,  held  chargeable  under  this  Article.  And  so  held  of 
an  officer  reporting,  when  drunk,  to  the  post  commander  for 
orders,  as  officer  of  the  day,  after  having  been  duly  detailed 
as  such.     XXXVII,  152. 

^  Xote  the  emphatic  order  of  the  President  in  regard  to 
violations  of  this  Article,  published  in  Cx.  O.  104,  Hdqrs.  of 
Army,  1877. 

''  See  cases  in  G.  O.  11,  Dept.  of  Louisiana,  1869 ;  G.  0.  M. 
O.,  113,  Dept.  of  the  Missouri,  1873. 


ARTICLES   OF   WAR.  17 

4.  But  where  an  officer,  after  being  specially  ordered  to 
remain  with  his  company,  absented  himself  from  it  and  from 
his  duty,  and,  while  thus  absent,  became  and  was  found 
drunk,  held  that  he  was  not  strictly  chargeable  with  drunk- 
enness on  duty  under  this  Article,  but  was  properly  charge- 
able with  disobedience  of  orders  and  unauthorized  absence, 
aggravated  by  drunkenness.    XXXVIII,  425. 

5.  A  post  commander,  while  present  and  exercising  com- 
mand as  such,  is  deemed  to  be  at  all  times  on  duty  in  the  sense 
of  this  Article,  and  thus  liable  to  a  charge  under  the  same  if 
he  become  drunk  at  the  post.^     XXVI,  480;  XXXVIII,  30G. 

6.  A  medical  officer  of  a  post,  where  there  are  constantly 
sick  persons  under  his  charge  who  may  at  any  moment  re- 
quire his  attendance,  may,  generally  speaking,  be  deemed  to 
be  *'on  duty"  in  the  sense  of  the  Article,  during  the  whole 
day,  and  not  merely  during  the  hours  regularly  occupied  by 
sick  call,  visiting  the  sick,  or  attending  hospital.  If  found 
drunk  at  auy  other  hour  he  may  in  general  be  charged  with  an 
offence  under  this  Article.    XXXVII,  IIG. 

7.  The  drunkenness  need  not  be  such  as  totally  to  incapac- 
itate the  party  for  the  duty :  it  is  sufficient  if  it  be  such  as 
materially  to  imi)air  the  full  and  free  use  of  his  mental  or 
physical  abilities.^  XXXVI,  444,  XXXVII,  118,  152,  G73 ; 
XXXVIII,  272  ;  XLT,  339.  It  is  not  a  sufficient  defence  to  a 
charge  of  drunkenness  on  duty  to  show  that  the  accused, 
though  under  the  influence  of  liquor,  contrived  to  get  through 
and  somehow  i^erform  the  duty.     XXXVII,  118. 

A  finding,  under  a  charge  of  a  violation  of  this  Article,  of 
not  guilty  of  being  ^'  found  drunk,"  but  guilty  of  being  "found 
under  the  influence  of  liquor,"  (or  by  which  the  latter  words 

^  That  the  Article  is  not  limited  in  its  application  to  mere 
duties  of  detail,  but  embraces  all  descriptions  and  occasions 
of  duty, — see  the  interpretation  of  the  same  as  declared  in 
(jr.  O.  7,  War  Dept.,  185G,  and  affirmed  in  G.  O.  5,  Id.,  1857. 
The  case  in  the  latter  order,  indeed,  was  a  case  of  drunken- 
ness while  on  duty  as  a  post  commander.  See  another  case  of 
the  same  character  in  G.  0.  M.  O.  21,  Dei^t.  of  the  Missouri, 
1870,  and  the  remarks  of  Maj.  Gen.  Schotield  thereon,  and 
compare  G.  C.  M.  O.  9,  War  Dept.,  1875. 

2  See  G.  C.  M.  O.  33,  War  Dept.,  1875;  also  do.  21,  Dept.  of 
the  Missouri.  1870;  G.  O.  53,  98,  Army  of  the  Potomac,  18G2  ; 
do.  48,  Deptl  of  Va.  &  Xo.  Ca.,  18G4;  do.  33,  Dept.  of  the 
Platte,  1871. 
2d 


18  ARTICLES  OF  WAR. 

are  sulxstituted  in  the  specification  for  the  former — see  Find- 
iNGr  §  4,)  reGommended  to  be  disapproved  as  making  a  dis- 
tinction loo  fine  for  a  practical  administration  of  justice,  and 
establishing  a  precedent  which  must  tend  to  defeat  the  pur- 
pose of  the  Article.^     XXXVI,  444. 

8.  It  is  immaterial  whether  the  drunkenness  be  voluntarily 
induced  by  spirituous  liquor  or  by  opium  or  other  intoxicating 
drug :  in  either  case  the  ofi'ence  may  be  equally  complete." 
XXXVIII,  409. 

0.  Drunkenness  not  on  duty,  or  when  off  duty,  when 
amounting  to  a  ''  disorder,''  should  be  charged  under  Article 
62,  unless,  (in  a  case  of  an  oificer,)  committed  under  such 
circumstances  as  to  constitute  an  ofi'ence  under  Art.  61. 
XXXI,  52. 

10.  Xo  punishment  except  dismissal  can  legally  be  imposed 
upon  an  ofiicer  on  a  conviction  of  the  offence  made  punish- 
able by  this  Article.  A  sentence  imposing,  with  dismissal, 
any  further  punishment,  as  imprisonment  or  forfeiture  of  i^ay, 
is,  as  to  Svich  additional  penalty,  unauthorized  and  inopera- 
tive, and  should,  so  far,  be  disapproved.  XIV,  330.  [See 
Sixty-first  Article,  §  19.] 

THIRTY-XIXTH  ARTICLE. 

'^Auy  sentiuel  who  is  found  sleeping  upon  his  post,  or  who  leaves  it 
before  he  is  regularly  relieved,  shall  suffer  death,  or  such  other  jiunish- 
ment  as  a  court-martial  may  direct." 

It  is  no  defence  to  a  charge  of  ^'  sleeping  on  post"  that  the 
accused  had  been  x^reviously  overtasked  by  excessive  guard 
duty  ;^  or  that  an  imperfect  discipline  prevailed  in  the  com- 
mand and  similar  ofienccs  had  been  allowed  to  pass  without 
notice;^  or  that  the  accused  was  irregularly  or  informally 
posted  as  a  sentinel.^  Evidence  of  such  circumstances,  how- 
ever, may  in  general  be  received  in  extenuation  of  the  offence ; 
or,  after  sentence,  may  form  the  basis  for  a  mitigation  or  i^ar- 

'  Compare  G.  C.  M.  O.  33,  War  Dept.,  1875. 

-Simmons  §  157.  And  see  Hough,  (Precedents,)  208; 
James'  Precedents,  60. 

^  See  G.  O.  74,  Army  of  the  Potomac,  1862 ;  also  G.  O.  cited 
in  note  5. 

^G.  O.  74,  Army  of  the  Potomac,  1862. 

5G.  O.  10,  Middle  Mil.  Dept.  1865;  do.  166,  Dept.  of  the 
South,  1864. 


ARTICLES   OF   WAR.  19 

tial  remission  of  tlie  punisbmeut.'  An  officer  wlio  places  or 
continues  a  soldier  on  duty  as  a  sentinel  when  fr«m  excessive 
fati^i'ue,  infirmity,  or  other  disability,  he  is  incompetent  to 
f>erfor[n  the  important  duties  of  such  a  position,  will  ordina- 
rily render  himself  liable  to  charges.^    XX,  250. 

FORTY-SECOXD  AETIOLE. 

"Any  officer  or  soldier  wlio  niisbeliaves  himself  before  the  enemy,  runs 
away,  or  shamefully  abandons  any  fort,  post,  or  guard,  which  he  is  com- 
manded to  defend,  or  speaks  words  inducing  others  to  do  the  like,  or  casts 
away  his  arms  or  ammunition,  or  quits  his  post  or  colors  to  plunder  or 
pillage,  shall  suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct." 

1.  Misbehavior  before  the  enemy  may  be  exhibited  in  the  form 
of  cowardice,  or  it  may  consist  in  a  wilful  violation  of  orders, 
gross  negligence  or  inefficiency,  an  act  of  treason  or  treachery, 
&c.^  It  need  not  be  committed  in  the  actual  sight  of  the  enemy, 
but  the  enemy  must  be  in  the  neighborhood,  and  the  act  of 
oftence  Lave  relation  to  some  movement  or  service  directed 
against  the  enemy,  or  growing  out  of  a  movement  or  operation 
on  his  part.  It  may  be  committed  in  an  Indian  war  equally 
as  in  a  foreign  or  civil  war.*    YI,  79;  XI,  274;  XLII,  54G. 

2.  The  term  "his  arms  or  ammunition"  does  not  refer  to  arms, 
&c  ,  which  are  the  personal  property  of  the  soldier,  but  means 
such  as  have  been  furnished  to  him  by  the  proi)er  officer  for  use 
in  the  service.^  The  term  is  to  be  construed  in  connection  with 
the  further  similar  expression,  "his  post  or  colors."    YI,  79. 

^See  G.  O.  10,62,  Dept.  of~Ya.  &  No.  Ca.',l8637do."2j 
:N"orthern  Dept.  1865;  do.  67,  Dept.  of  Washington,  1866; 
do.  9,  Dept.  of  the  South,  1870 ;  G.  0.  M.  O.  44,  Dept.  of 
Texas,  1875. 

2  See  G.  O.  15,  Army  of  the  Potomac,  1861 ;  do.  62,  Dept. 
of  Ya.  &  Xo.  Ca.,  186:^ ;  G.  C.  M.  O.  59,  Dept.  of  Texas,  1872 ; 
do.  SO,  Dept.  of  the  Missouri,  1875. 

^The  x)hases  which  this  ofience  may  assume  are  well  illus- 
trate<l  in  cases  published  in  the  following  General  Orders: 
G.  O.  5,  War  Dept.,  1857;  do.  183  Id.,  1862;  do.  18,  134,  146, 
189,  204,  229,  282,  317,  Id.,  1863;  do.  27,  64,  Id.,  1864;  G.  0. 
M.  O.  90,  114,  272,  279,  Id.,  1864;  do.  53,  91,  107,  124,  126. 
134,  191,  421,  Id.,  1865. 

■*  See  case  in  G.  O.  5,  War  Dept.,  1857,  in  which  a  soldier 
was  sentenced  to  be  hung  upon  conviction  of  misbehavior  be- 
fore the  enemy  on  the  occasion  of  a  light  with  Indians. 

^See  Samuel,  592;  Hough,  (Practice,)  336.  And  compare 
Seventeenth  Article,  §  3. 


20  ARTICLES   OF  WAR. 

rORTY-FIFTH  ARTICLE. 

''Whosoever  relieves  tlie  enemy  witli  money,  victuals,  or  ammunition, 
or  knowingly  harbors  or  protects  an  enemy,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct." 

1.  In  view  of  the  general  term  of  description  in  this  and 
the  succeeding  Article — ''Whosoever,"  it  was  helcl^  during 
the  late  war,  by  the  Judge  Advocate  General  and  by  the 
Secretary  of  War,^  and  has  been  lield  later  by  the  Attorney 
General,^  that  civilians,  equally  with  military  i:)ersons,  were 
amenable  to  trial  and  i>unishment  by  court-martial  under 
either  Article.=^     II,  498;  V,  291;  XI,  215,  454. 

2.  During  the  late  war,  all  inhabitants  of  insurrectionary 
States  were  prima  facie  enemies  in  the  sense  of  this  and  the 
succeeding  Article.^  XIV,  266.  A  citizen  of  an  insurgent 
State  who  entered  the  U.  S.  military  service  became  of  course 
no  longer  an  enemy.  So  held  of  a  Lieutenant  of  the  1st  -"&. 
Tenn.  Cavalry.    XXIX,  206. 

3.  It  is  no  less  a  relieving  an  enemy  under  this  Article 

'See  G.  O.  67,  War  Dept.,  1861;  also  the  following  Orders 
of  that  Department  publishing  and  approving  sentences  of 
civilians  tried  and  convicted  under  these  Articles: — G.  O.  76, 
175,  250,  371,  of  1863;  do.  51  of  1864;  G.  C.  M.  0. 106, 157,  of 
1864;  do.  260,  671,  of  1865. 

2  XIII  Opins.  472. 

^Admitting  this  construction  to  be  warranted  so  far  as  re- 
lates to  acts  committed  on  the  theatre  of  war  or  within  a  dis- 
trict under  martial  law,  it  is  to  be  noted  that  it  is  the  eftect 
of  the  leading  adjudged  cases  to  x>reclude  the  exercise  of  the 
military  jurisdiction  over  this  class  of  oftences,  when  commit- 
ted by  civilians  in  places  not  under  military  government  or 
martial  law.  See,  especially,  U.io  lyarte  Milligan,  4  Wallace, 
121-123 ;  Jones  v.  Seward,  40  Barb.  563;  also  other  cases  cited 
in  note  to  Court-Marttal,  II  §  7. 

^  See  the  opinion  of  the  U.  S.  Sui^reme  Court,  (frequently 
since  reiterated,  in  substance,)  as  given  bv  Grier,  J.,  in  the 
'^  Prize  Cases,"  2  Black,  666,  (1862;)  and  by  Chase,  C.  J.  in  the 
cases  of  Mrs.  Alexander's  Cotton,  and  The  Venice,  2  AVallace, 
274, 418,  (1864.)  In  the  latter  case  the  Chief  Justice  observes : 
''The  rule  which  declares  that  war  makes  all  the  citizens  or 
subjects  of  one  belligerent  enemies  of  the  government  and  of 
all  the  citizens  or  subjects  of  the  other,  ai)plies  ecjually  to  civil 
and  to  iuternational  wars."  That  an  insurrectionary  State  was 
no  less  "euemy's  couutry,"  though  in  the  military  occupation 
of  the  United  States,  with  a  uulitary  governor  appointed  by 
the  President — see  oi)iuiou  by  Field  J.  in  Coleman  v.  Tennes- 
see, 7  Otto,  516-517. 


ARTICLES   OF  WAR.  21 

that  the  money,  &c.,  furnished  is  exchanged  for  some  com- 
modity, as  cotton,  valuable  to  the  other  party.  XI I,  385 ; 
XIV,  206;  XVI,  446.    . 

4.  The  act  of  '^  relieving  the  enemy  "  contemplated  by  this 
Article  is  distinguished  from  that  of  trading  with  the  enemy 
in  violation  of  the  laws  of  war ;  the  former  being  restricted 
to  certain  particular  forms  of  relief,  while  the  latter  includes 
ever^'  kind  of  commercial  intercourse  not  expressly  author- 
ized by  the  government.    XIV,  266.     [See  Law  of  War,  §  1.] 

FORTY-SIXTH  ARTICLE. 

"Whosoever  holds  correspondeuce  -with,  or  gives  iutelligence  to,  the 
enemy,  either  directly  or  indirectly,  shall  suffer  death,  or  such  other  pun- 
ishment as  a  court-martial  may  direct." 

1.  Held  that  the  ofience  of  holding  correspondence  with  the 
enemy  was  completed  by  writing  and  putting  in  progress  a 
letter  to  an  inhabitant  of  an  insurrectionary  State  during  the 
late  war ;  it  not  being  deemed  essential  to  this  offence  that 
the  letter  should  reach  its  destination.^  IV,  368 ;  V,  274, 287 ; 
X,  567. 

2.  It  is  essential,  however,  to  the  offence  of  giving  intelli- 
gence to  the  enemy  that  material  information  should  actually 
be  communicated  to  him;  the  communication  may  be  verbal, 
in  writing,  or  by  signals.     XIV,  273. 

FORTY-SEVEXTH  ARTICLE. 

"  Any  officer  or  soldier  who,  having  received  pay,  or  having  been  duly 
enlisted  in  the  service  of  the  United  States,  deserts  the  same,  shall,  in 
time  of  war,  suffer  death,  or  such  other  punishment  as  a  court-nuirtial 
may  direct ;  and  in  time  of  peace,  any  punishment,  excepting  death, 
which  a  court-martial  may  direct." 

See  desertion. 

FORTY-EIGHTH  ARTICLE. 

'*  Every  soldier  who  deserts  the  service  of  the  United  States  shall  bo 
liable  to  serve  for  such  period  as  shall,  with  the  time  he  may  have  served 
ln■e^ious  to  his  desertion,  amount  to  the  full  term  of  his  enlistment ;  and 
such  soldier  shall  be  tried  by  a  court-martial  and  punished,  although  the 
term  of  his  enlistment  may  have  elapsed  previous  to  his  being  appre- 
hended and  tried ." 

1.  The  liability,  to  make  good  to  the  United  States  the  time 
lost  by  desertion,  enjoined  by  the  first  clause  of  this  Article, 

^Compare  Hensey's  Case,  1  Burrow,  642;  Stone's  Case,  6 
Term,  527;  Samuel,  580. 


22  ARTICLES   OF  WAR. 

is  independent  of  Sii\j  punishment  which  may  be  imposed  by 
a  court-martial,  on  conviction  of  the  offence:  it  need  not, 
therefore,  be  adjudged  or  mentioned  in  terms  in  the  sentence.^ 
The  liability  is  a  legal  consequence  of  the  conviction,  and  a 
soldier  can  be  subjected  thereto  only  ui^on  a  conviction  duly 
approved  by  the  i^roper  authority.^  XLII,  130.  If  the  con- 
viction is  disapproved,  the  legal  status  of  the  accused  is  the 
same  as  if  he  had  been  acquitted,  and  the  obligation  of  addi- 
tional service  is  of  course  not  incurred.     XXVI,  568. 

2.  Where  a  deserter  was  sentenced  to  imprisonment  for  the 
"balance  of  his  term;"  held  that  he  was  not  absolved  from 
the  obligation  to  make  good  time  lost;  these  words  referring 
to  the  balance  of  the  term  of  his  original  enlistment.  XI, 
615,  680  ;  XXVII,  439. 

3.  The  time  passed  by  a  deserter  in  confinement  under  sen- 
tence cannot  be  computed  as  a  part  of  the  i^eriod  required  by 
the  Article  to  be  made  good  to  the  United  States,  such  time  not 
being  a  time  of  military  service,  but  of  i)uuishment.  XXX, 
506;  XXXI,  275,  374.  Nor  can  the  i)eriod  of  confinement  be 
credited  where  the  sentence  is  remitted  before  it  is  fully  exe- 
cuted. XXIV,  39.  So,  time  passed  by  the  deserter  in  arrest 
or  confinement,  (or  in  hospital,)  while  waiting  trial  or  action 
upon  his  sentence,  cannot  be  so  computed.    XI 1,  326. 

4.  The  enforcement  of  the  liability,  where  enforced  at  all,  is 
generally  postponed  till  after  the  execution  of  the  punishment, 
(if  any),  imposed  upon  the  deserter  by  his  sentence.  A  de- 
serter may  still  be  required  to  make  good  the  time  included  in 
his  unauthorized  absence  from  the  service,  although  his  term 
of  enlistment  has  exj^ired  pending  a  term  of  confinement  ad- 

1  See  G.  O.  21,  Dept.  of  the  Lakes,  1873 ;  do.  94,  Dept.  of 
the  Missouri,  1867 ;  G.  C.  M.  O.  74,  Dept.  of  the  East,  1873. 
The  old  ruling  contra,  (see  G.  O.  26,  45,  Hdqrs.  of  Army, 
1843,)  may  be  regarded  as  abandoned  in  our  law  and  i)ractice. 
Compare  authorities  cited  in  next  note. 

2  See  opinion  of  Atty.  Gen.  Taft  of  Sei)t.  1,  1876,  XV  Opins. 
152,  (citing  Huber  y.'Reilly,  52  Penn.,  112.)  The  Atty.  Gen. 
says :  '^  This  provision,"  (referring  to  the  first  clause  of  Art.  48,) 
"  is  to  be  construed  along  with  the  other  penal  provisions 
relating  to  the  offence  of  desertion,  all  of  which  contemplate 
a  trial  and  conviction  before  the  iniiiction  of  the  penalty. 

*  *  It  comes  into  play  only  after  a  conviction."  This 
opinion  has  been  affirmed  by  an  oi)inion  of  Atty.  Gen.  Devens 
of  Oct.  16,  1878,  (XVI  Opins.  — .^ 


AETICLES   OF   AVAR.  23 

judged  him  by  court  martial  ou  conviction  of  his  offence,  pro- 
vided he  has  not  been  discharged.    XXXI  I,  40. 

5.  The  United  States  may  icaive  the  liability  imposed  by 
the  first  clause  of  the  Article.  It  is  in  fact  waived  where  the 
deserter,  without  being  required  to  i)erform  the  service,  is 
discharged  by  one  of  the  officials  authorized  by  Art.  4  to  dis- 
charge soldiers.  So  it  is  waived  where  the  soldier  is  adjudged 
to  be  dishonorably  discharged  by  sentence  of  court  martial, 
and  this  punishment  is  duly  approved  and  thereupon  exe- 
cuted.    XXIX,  507  ;  XXX,  506;  XXXYII,  416. 

6.  The  provision  of  the  second  clause  of  this  Article  applies 
only  to  desertions  committed  while  the  soldier  is  duly  in  the 
service  and  before  his  term  of  enlistment  has  expired.  For 
an  escape  from  military  custody,  committed  after  the  expira- 
tion of  the  period  for  which  he  enlisted,  and  while  he  is  held 
in  arrest  prior  to  trial  or  awaiting  sentence,  or  in  confinement 
under  sentence, — a  soldier  cannot  be  made  amenable,  under 
this  Article,  to  trial  as  for  a  desertion.  XXXIV,  98.  A  de- 
serter, who  has  been  duly  discharged  from  the  service,  of 
course  does  not  remain  amenable  to  trial  under  this  Article. 
XXXI,  48. 

7.  The  liability  to  trial  and  punishment  imposed  by  the 
second  clause  of  the  Article  is  subject  to  the  two  years'  limi- 
tation of  prosecutions  prescribed  by  Art.  103.  XXXI,  384. 
[See  One  hundred  and  third  Article,  §  9.] 

FIFTIETH  AETICLE 

"  No  non-commissioned  officer  or  soldier  shall  enlist  himself  in  any 
other  regiment,  troop,  or  company,  without  a  regular  discharge  from  the 
regiment,  troop,  or  company  in  which  he  last  served,  on  a  penalty  of  being 
reputed  a  deserter,  and  suffering  accordingly.  And  in  case  any  officer 
shall  knowingly  receive  and  entertain  such  non-commissioned  officer  or 
soldier,  or  shall  not,  after  his  being  discovered  to  be  a  deserter,  immedi- 
ately confine  him  and  give  notice  thereof  to  the  corps  in  which  he  last 
served,  the  said  officer  shall,  by  a  court-martial,  be  cashiered." 

1.  This  Article,  in  its  first  clause,  does  not  create  a  specific 
ofltence,  or  one  distinct  from  the  desertion  made  punishable 
in  the  47th  Article,  but  declares  in  efl:ect  that  a  soldier  who 
abandons  his  regiment  shall  be  deemed  none  the  less  a  de- 
serter although  he  may  forthwith  re-enlist  in  a  new  regiment. 
It  does  not  render  the  act  of  re-enlistment  a  desertion,  but 
simply  makes  the  re-enlistment,  under  the  cu^cumstances  in- 


24  ARTICLES   OF   WAR. 

dicated,  prima  facie  evideoce  of  a  desertion  from  the  previous 
enlistmeut  from  which  the  soldier  has  not  been  discharged, 
or,  more  accurately,  evidence  of  an  intent  not  to  return  to 
the  same.^  The  object  of  the  provision,  as  it  originally  aj)- 
pears  in  the  British  code,  apparently  was  to  preclude  the 
notion,  that  might  otherwise  have  been  entertained,  that  a 
soldier  would  be  excused  from  repudiating  or  departing  from 
his  original  contract  of  enlistment,  i)r()vided  he  i^resently 
renewed  his  obligation  in  a  different  portion  of  the  military 
force.^    XLII,  642. 

2.  Held  that  an  enlisted  marine,  who  abandoned  the  marine 
corps  without  a  discharge  and  enlisted  in  the  Army,  could 
not  be  ''  reputed  a  deserter "  according  to  the  terms  of  this 
Article ;  but  advised  that  he  be  turned  over  to  the  comman- 
dant of  that  corps  for  the  proi)er  disi^osition  and  action. 
XXXI,  170,  379. 

3.  Where  a  soldier  enlisted  in  a  certain  regiment,  after 
being  officially  notified  that  he  was  duly  discharged  from  a  x)re- 
vious  enlistment,  but  without  having  received  the  written  cer- 
tificate and  evidence  of  his  discharge,  which,  by  mistake  or 
accident,  had  not  been  delivered  to  him  as  required  by  Art. 
4, — held  that  he  could  not  properly  be  •'  reputed"  or  charged 
as  a  deserter.     XXXYIII,  343. 

FIFTY-FIRST  ARTICLE. 

"Any  officer  or  soldier  who  advises  or  persuades  any  otlier  officer  or 
soldier  to  desert  the  service  of  the  United  States,  shall,  in  time  of  war, 
suffer  death,  or  such  other  punishment  as  a  court-martial  maj^  direct; 
and  in  time  of  peace,  any  punivshment,  excepting  death,  which  a  court- 
martial  may  direct." 

A  declaration,  made  by  one  soldier  to  another,  of  a  willing- 
ness to  desert  with  him  in  case  he  should  decide  to  desert, 
held  not  i)roperly  an  advising  to  desert,  in  the  sense  of  this 
Ai'ticle.  To  constitute  the  ofl'ence  of  advising  to  desert,  it  is 
not  essential  that  there  should  have  been  an  actual  desertion 
by  the  party  advised.  But  held  otherwise  as  to  the  offence 
of  persuading  to  desert:  to  comi)lete  this  offence  the  persuasion 
should  have  induced  the  act.^    XXXIX,  407. 

^See  the  similar  view  expressed  in  G.  0.  M.  O.  129,  Dept. 
of  the  Missouri,  1872 ;  do.  77,  Id.,  1874. 

^  See  Samuel,  330-1. 

^Compare  Hough,  (Practice.)  172,  and  cases  in  G.  O.  23, 
Dept.  of  the  Missouri,  18G2;  G'.  0.  M.  O.  11,  152,  Id.,  1808. 


ARTICLES   OF  WAR.  25 

riFTY-rOUETH  AETICLE. 

*' Every  officer  commanding  in  quarters,  garrison,  or  on  the  march,  shall 
keep  good  order,  and,  to  the  utmost  of  his  power,  redress  all  abuses  or 
disorders  which  may  be  committed  by  any  officer  or  soldier  uuder  his 
command;  and  if,  upon  complaint  made  to  him  of  officers  or  soldiers 
beating  or  otherwise  ill-treating  any  person,  disturbing  fairs  or  markets, 
or  committing  anj^  kind  of  riot,  to  the  disquieting  of  the  citizens  of  the 
United  States,  he  refuses  or  omits  to  see  justice  done  to  the  offender,  and 
reparation  made  to  the  party  injured,  so  far  as  part  of  th<j  olfender's  pay 
shall  go  toward  such  reparation,  he  shall  be  dismissed  from  the  service, 
or  otherwise  punished,  as  a  court-martial  may  direct." 

1.  While  this  Article  would  certainly  appear  to  contemplate 
the  making  of  reparation  for  injuries  done  to  the  persons  of 
citizens  ratlier  than  for  injuries  done  to  their  property^  yet 
advised.,  in  view  of  the  i)recedents,  that  it  might  i^robably  be 
regarded  as  within  the  equity  of  the  Article  to  indemnify  a 
citizen  for  wanton  injury  done  to  his  property  by  a  soldier  or 
soldiers,  by  means  of  a  stoppage  against  his  or  their  pay, 
summarily  ordered  upon  investigation  by  the  commanding 
officer.^  VII,  263.  In  a  few  cases  a  stoppage  of  the  pay  of 
an  entire  regiment,  for  damage  to  private  property  committed 
by  its  members,  has  been  sanctioned  as  authorized  under  the 
general  remedial  provisions  of  this  Article.  YIII,  G71 ;  XII, 
673. 

2.  The  stoppage  contemplated  is  quite  distinct  from  a  pun- 
ishment  by  fine.,  and  it  cannot  aifect  the  question  of  the  sum- 
mary reparation  authorized  by  the  Article,  that  the  offender 
or  offenders  may  have  already  been  tried  for  the  offence  and 
sentenced  to  forfeiture  of  pay.  In  such  a  case,  indeed,  the 
forfeiture,  as  to  its  execution,  would  properly  take  precedence 
of  the  stoppage.  On  the  other  hand,  where  the  stoppage  is 
first  duly  ordered  under  the  Article,  it  has  precedence  over  a 
forfeiture  subsequently  adjudged  for  the  offence.    XXI,  447. 

^  See  now  G.  O.  35,  Hdqrs.  of  Army,  1SG8,  construing  this 
Article,  and  prescribing  the  proceeding  under  it ;  rei)aration 
for  injury  to  property  as  well  as  person  being  authorized.  The 
Article,  however,  is  antiquated  in  form  aud  indefinite  and  in- 
complete in  its  provisions,  and  calls  for  repeal  or  amendment. 
For  the  principal  cases  in  which  it  has  been  applied  in  our 
practice,  the  student  is  referred  to  G.  O.  4,  Dept.  of  the  Ohio, 
1803;  do.  123,  Dept.  of  the  Gidf,  1804;  do.  101,  Dept.  of  Wash- 
Ington,  1805;  do.  59,  Id.,  1800;  do.  74,  Dept.  of  Arkansas,  1865; 
do.  48,  55,  Dept.  of  Louisiana,  1800;  do.  0,  Dept.  of  the  Cum- 
berland, 1867:  do.  10,  Dept.  of  the  South,  1870. 


26  ARTICLES   OF  WAR. 

3.  It  does  not  affect  the  question  of  reparation  nncler  the 
Article,  that  the  offender  or  offenders  may  be  criminally  liable 
for  the  injury  committed,  or  may  have  been  i^nnished  therefor 
by  the  civil  authorities.     XXXIY,  335. 

4.  Held  that  the  remedial  provision  of  this  Article  could  not 
be  enforced  in  favor  of  military  i^ersons,  (XXYI,  352; 
XXVII,  453;  XXXII,  152;)  or  in  favor  of  the  United  States, 
(XXA^I,  37;)  or  to  indemnify  parties  for  property  stolen  or  em- 
hezzled.  XXXV,  139. 

5.  The  i)ay  of  the  offender  or  offenders  can  be  resorted  to 
only  for  the  purpose  of  the  ''reparation."  A  military  com- 
mander can  have  no  authority  to  add  a  further  amount  of 
stopi^age  by  way  of  jnmishment.     VIII,  G71. 

G.  Held  that,  as  an  agency  for  assessing  the  amount  of  the 
damage,  a  court-martial  could  not  properly  be  substituted  for 
the  board,  directed  by  G.  O.  35,  Ildqrs.  of  Army,  1868,  to  be 
convened  for  such  purpose.     XXXVII,  52;  XXXIX,  544. 

FIFTY-FIFTH  AETICLE. 

''All  officers  and  soldiers  are  to  behave  themselves  orderly  in  quarters 
and  on  the  march ;  and  whoever  commits  any  waste  or  sjioil,  either  in 
w^alks  or  trees,  parks,  warrens,  lish-pouds,  houses,  gardens,  grain-fields, 
Enclosures,  or  meadows,  or  maliciously  destroys  any  proi)erty  whatsoever 
belonging  to  inhabitants  of  the  United  States,  (unless  by  order  of  a  gen- 
eral officer  commanding  a  separate  army  in  the  field,)  shall,  besides  such 
penalties  as  he  may  be  liable  to  by  law,  be  punished  as  a  court-martial 
may  direct." 

1.  The  acts  of  trespass,  &c.,  indicated  in  this  Article  are 
made  punishable  as  special  breaches  of  discipline,  and  less 
for  the  protection  of  citizens  than  for  the  maintenance  of  the 
orderly  behaviour  and  morale  of  the  military  force.  Thus, 
where  a  soldier,  on  a  march  in  the  enemy's  country,  entered 
without  authority  the  house  of  an  inhabitant  aud  coumiitted 
waste  and  spoil  therein ;  heldj  upon  his  trial  under  this  Article, 
that  it  was  no  defence  that  such  inhabitant  was  an  active 
enemy  and  had  engaged  in  overt  hostilities  against  the  United 
States.    XVIII,  514. 

2.  Where,  under  a  charge  of  "maliciously  destroying  i)rop- 
erty  "  in  violation  of  this  Article,  the  court  convicted  the 
accused,  except  as  to  the  word  "maliciously,"'  and  imposed, 
sentence;  held  that,  by  this  excex)tion,  in  its  findiug,  of  the 


ARTICLES   OF   WAR.  27 

gist  of  the  offence  charged,  the  court  had  in  fact  acquitted 
the  accused  of  the  same,  and  that  the  form  of  its  judgment 
was  therefore  irregular  and  imi^roper ;  and  advised  that  the 
l)roceedings  be  returned  to  the  court  for  revision,  so  that  it 
might  either  formally  acquit  the  accused  altogether,  or  find 
him  not  guilty  of  th«  charge  but  guilty  of  "  conduct  to  the 
prejudice  of  good  order  and  military  disciidine."  XIV,  341. 
[See  Finding,  §  4,  10.] 

FIFTY-EIGHTH  AETICLE. 

"In  time  of  war,  insniTection,  or  rebelliou,  larceny,  robbery,  burglary, 
arson,  mayhem,  man.slanghter,  murder,  assault  and  battery  with  an  intent 
to  kill,  wounding,  by  shooting  or  stabbing,  with  an  intent  to  commit 
murder,  rape,  or  assault  and  battery  with  an  intent  to  commit  rape,  shall 
be  punishable  by  the  sentence  of  a  general  court-martial,  when  com- 
mitted by  i^ersons  in  the  military  service  of  the  United  States,  and  the 
punishment  in  any  such  case  shall  not  be  less  than  the  punishment  pro- 
vided, for  the  like  offence,  by  the  laws  of  the  State,  Territory,  or  District 
in  which  such  offence  may  have  been  committed." 

1.  This  Article,  in  specifically  making  murder,  manslaugh- 
ter, larceny  and  other  crimes  cognizable  by  courts-martial 
*'in  time  of  war,  rebellion,"  &c.,  has  in  effect  excluded  these 
crimes  from  the  jurisdiction  of  military  courts  in  time  of 
peace; — except,  indeed,  where  committed  under  such  (drcum- 
stances  as  directly  to  prejudice  military  order  and  discipline, 
when,  (if  not  capital,)  they  may  be  made  the  subject  of 
charges  aud  trial  under  Art.  62.i  XXXIX,  412.  [See  Sixty- 
Second  Article,  §  2.] 

2.  The  jurisdiction  conferred  by  this  A^rticle  upon  military 
courts  has  been  held  by  the  highest  judicial  authority  to  be 
not  exclusive,  but  concurrent  merely  with  that  of  tbe  civil 
tribunals.'  The  word  "  shall,"  in  the  term  ''shall  be  punish- 
able," is  construed  as  equivalent  to  may.^    XXXVI,  400. 

3.  In  framing  a  charge  under  this  Article,  it  will  not  in 
general  be  essential  to  allege,  in  connection  with  the  date  of 
the  offence,  or  to  show  by  evidence,  that  the  act  was  com- 

^  And  except  as  to  "larceny,"  when  it  consists  in  the  offence 
of  stealing  public  property  made  x)unishable  by  Art.  GO. 

2  Coleman  v.  Tennessee,  7  Otto,  513.  And  see  People  v. 
Gardiner,  (i  Parker,  143 ;  G.  O.  29,  Dept.  of  the  Xorthwest, 
1804 ;  do.  32,  Dept.  of  Louisiana,  1866. 

^People  V.  Gardiner,  supra. 


28  ARTIOLES  OF  WAR. 

mitted  at  a  time  of  war,  &c. ;  this  being  a  fact  of  which  a  court 
will  ordinarily  properly  take  judicial  notice.^     XVII,  396. 

4.  Relcl^  (November,  1865,)  that  military  courts  were  still 
emijowered  to  exercise  the  jurisdiction  conferred  by  this  Arti- 
cle, the  status  belli  not  having-  ;yet  been  declared  to  be  termi- 
nated, either  by  the  Executive  or  Congress.  XXI,  17.  A 
court-martial  of  course  could  have  no  authority  whatever  to 
decide  whether  the  war  was  ended.  XYII,  397.  [As  to  how 
the  late  war  was  legally  terminated,  and  when,  see  War.] 

5.  Where  a  sentence,  adjudged  by  a  court  convened  by  the 
authority  of  this  Article,  imposed  a  punishment  of  less  sever- 
ity than  that  provided  for  the  same  offence  by  the  law  of  the 
State  in  which  the  offence  was  committed,  (as  imprisonment 
where  the  law  of  the  State  required  the  death  penalty  j)  held 
that  such  a  sentence  was  unauthorized  and  inoperative.  XXI, 
6 J  XXIV,  42.  But  though  the  punishment  must  not  be 
"  less,"  it  may  legally  be  of  greater  severity  than  that  pro- 
vided by  the  local  statute.  II,  564  j  XX,  187;  XXI,  77.  Meld 
that  the  court^  in  imposing  i^unishment,  should  be  governed 
by  the  local  laAV,  (so  far  as  required  by  the  Article,)  although 
the  offence  was  committed  in  a  State  whose  ordinarj^  relations 
to  the  General  Government  had  been  suspended  by  a  state  of 
war  or  insurrection.^    VII,  205. 

FIFTY-NINTH  ARTICLE. 

-  "When  any  officer  or  soldier  is  accused  of  a  capital  crime,  or  of  any 
offence  against  the  person  or  property  of  any  citizen  of  any  of  the  United 
States,  which  is  punishable  by  the  laws  of  the  land,  the  commanding 
officer,  and  the  officers  of  the  regiment,  troop,  battery,  company,  or  detach- 
ment, to  which  the  person  so  accused  belongs,  are  required,  except  in 
time  of  war,  upon  application  duly  made  by  or  in  behalf  of  the  party  in- 
jured, to  use  their  utmost  endeavors  to  deliver  him  over  to  the  civil  mag- 
istrate, and  to  aid  the  officers  of  justice  in  ai^preheuding  and  securing 
him,  in  order  to  bring  him  to  trial.  If,  upon  such  application,  any  of- 
ficer refuses  or  willfully  neglects,  except  in  time  of  war,  to  deliver  over 
such  accused  j)ersou  to  the  civil  magistrates,  or  to  aid  the  officers  of  jus- 
tice in  apprehending  him,  he  shall  be  dismissed  from  the  service." 

^  See  the  application  of  this  principle  to  the  fact  of  the 
existence  of  the  late  war  of  the  rebellion,  in  Justice  Field's 
charge  to  the  grand  jury  in  United  States  v.  Greathouse,  4 
Sawyer,  457. 

-  That  the  Southern  States  during  the  late  war  were  "  at 
no  time  out  of  the  pale  of  the  Union,"  see  White  v.  Hart,  13 
Wallace,  646. 


ARTICLES   OF   WAR.  29 

1.  This  Article  is  a  recognition  of  the  general  principle  of 
the  subordination  of  the  military  to  the  civil  power, ^  and  its 
main  purpose  evidently  is  to  facilitate,  in  cases  of  offenders 
against  the  local  civil  statutes,  who  happen  to  be  connected 
with  the  army,  the  execution  of  those  statutes,  where,  as  citi- 
zens, such  persons  remain  legally  amenable  to  arrest  and 
trial  thereunder.  But  the  Article,  in  requiring  military  com- 
manders, 4&C.,  to  commit  this  class  of  offenders  to  the  civil 
authorities,  ''^  upon  application  duly  made,^^  imi)liedly  jn-ohibits 
their  surrender  or  arrest  except  as  thus  indicated.  The  com- 
mander is  not  authorized  to  deliver  up  the  accused,  nor  is  the 
civil  official  authorized  to  claim  or  to  take  him,  unless  it  be 
first  x>i'operly  made  to  api)ear  that  he  is  formally  charged 
with  a  crime  or  offence  within  the  meaning  of  the  Article, 
and  that  his  surrender  is  required  "by  or  in  behalf  of  the 
party  injured."^  In  a  case  of  a  summary  arrest  of  an  officer' 
or  soldier  without  due  application,  his  release  should  be 
demanded,  and  if  the  demand  is  refused,  he  may  legally  be 
released  by  military  force,  if  it  be  deemed  expedient  to  resort 
to  it.  3    III,  446  J  VIII,  601 J  XXXV,  357. 

2.  Where  a  military  ofl&cer,  without  any  formal  application 
being  made  for  his  surrender  in  conformity  with  this  Article, 
was  summarily  arrested  and  confined  in  i)rison  by  the  civil 
authorities  of  a  State,  upon  a  charge  of  assault  ui)on  a  citi- 
zen; and  these  authorities,  as  well  as  the  governor  of  the 
State,  when  called  ui^on  to  interfere,  formally  refused  to  re- 
lease him  ;  held  (December,  1865,)  that  the  department  com- 
mander, in  compelling  his  release  by  the  presence  and  use  of 
a  military  force,  could  not  be  said  to  have  transcended  his 
authority.     XVII,  532. 

3.  The  commanding  officer,  before  surrendering  the  party, 
is  entitled  to  require  that  the  *' application"  shall  be  so  specific 
as  to  identify  the  accused  and  to  show  that  he  is  charged 
with  a  particular  crime  or  offence  which  is  within  the  class 
described  in  the  Article.  Where  it  is  doubtful  whether  the 
application  is  made  in  good  faith  and  in  the  interests  of  law 
and  justice,  the  commander  may  demand  that  the  ai^plication 
be  especially  exi>licit  and  be  sworn  to ;  and  in  general  the 

^  See  the  declaration  of  this  x^rinciple  in  the  recent  case  of 
Dov*'  V.  Johnson,  10  Otto,  169. 

-See  Ex  parte  ]\[cEoberts,  16  Iowa,  603-605. 
"^See  Ex  parte  Bright,  1  Utah,  151. 


30  ARTICLES  OF  WAR 

preferable  and  indeed  only  satisfactory  coarse  will  be  to  re- 
qnire  the  production,  if  practicable,  of  a  due  and  formal  war- 
rant or  writ  for  the  arrest  of  the  party.  ^  XXI,  5G7  ;  XXIII, 
490 ;  XXXY,  357.  The  application  required  by  the  Article 
should  be  made  in  a  case  where  the  crime  was  committed  by 
the  party  before  he  entered  the  military  service  equally  as 
where  it  was  committed  by  him  while  in  the  service. "  In  the 
former  case  a  more  exact  identification  may  perhaps  reason- 
ably be  required.     XII,  145. 

4.  The  provisions  of  the  Article  are  applicable  only  when 
the  officer  or  soldier  is  accused  of  a  crime  or  offence  "  which 
is  i)unishable  by  the  laws  of  the  land,"  i.  e.,  by  the  public 
law — statutes  or  constitution — of  the  i^articular  State.^ 
Where  the  i^arty  is  charged  with  a  mere  breach  of  the  peace 
or  other  disorder  in  violation  of  a  local  ordinance,  by-law,  or 
■police  regulation,  he  may  legally  be  forthwith  arrested  and  pro- 
ceeded against  by  the  civil  authorities,  without  any  such  formal 
application  as  is  contemplated  by  the  Article.*  XXIX,  C26; 
XXXV,  357,  478. 

5.  The  Article  is  not  applicable  to  a  case  of  an  offence  com- 
mitted against  the  laws  of  the  United  States,  as — for  instance — 
the  statutes  prohibiting  the  introduction  of  liquor  into  the 
Indian  country.    XXXII,  445.    Xor  is  it  applicable  to  a  case 

1  See  II  Opins.  of  Attys.  Gen.,  10. 

2  See  G.  O.  20,  Dept.  of  the  Northwest,  1864,  where  it  is  re- 
marked that  there  is  an  especial  obligation  to  surrender  the 
soldier,  where  the  crime  was  committed  by  liim  before  enter- 
ing the  military  service. 

^  As  to  the  meaning  of  the  term  ^'  laws  of  the  land,"  espe- 
cially as  contrasted  with  municipal  ordinances,  see  Vanzant 
V.  Waddell,  2  Yerger,  270;  State  Bk.  v.  Cooper,  Id.,  005; 
Horn  V.  People,  20  Mich.,  228  ;  Ux  parte  Bright,  1  Utah,  140, 
158. 

^  See  Ex  parte  Bright,  1  Utah,  145.  This  case,  however,  is 
regarded  ats  going  too  far  in  holding  that  though  a  soldier 
may,  without  application  to  the  military  authorities,  be  ar- 
rested and  detained^  by  the  civil  authorities,  for  the  violation  of 
a  city  ordinance,  lie  may  not  be  tried  or  punished  b,>^  the  lat- 
ter, but,  for  that  purpose,  must  be  surrendered  to  the  military 
commander.  Unless  the  offence  of  such  a  soldier  directlj^ 
prejudiced  military  discipline,  he  could  not  be  tried  for  the 
same  at  all  by  a  military  court;  and  if  it  did,  he  would  be 
triable  only  for  the  breach  of  discii)line,  leaving  him  still 
amenable  to  the  local  law  for  the  civil  disorder. 


ARTICLES  OF  WAE.  31 

of  an  offence  committed  in  a  place  over  and  witliin  which  the 
jurisdiction  of  the  United  States  is  exchisive.^    XXI,  5G7. 

6.  The  party  should  be  surrendered  upon  proper  applica- 
tion, though  the  offence  be  one  of  which  a  military  court 
has  jurisdiction  concurrently  with  the  civil  courts ;  unless, 
indeed,  the  miUtary  jurisdiction  has  already  duly  attached, 
(by  means  of  arrest  or  service  of  charges  with  a  view  to  trial,) 
in  which  case  the  prisoner  may  be  surrendered  or  not  as  the 
proper  authority  may  determine.  A  soldier  under  a  sentence 
of  confinement  imposed  by  court  martial  cannot,  in  general, 
properly  be  surrendered  under  this  Article.  In  sucli  a  case, 
the  civil  authorities  should,  regularly,  defer  their  application 
till  the  military  punishment  has  been  executed  or  remitted.^ 
XXXI,  317.  Where  a  soldier,  duly  surrendered  under  this 
Article  and  allowed  to  go  on  bail,  was  thereupon  returned  to 
duty,  held  that  it  was  within  the  spirit  of  the  Article  for  the 
department  commander  to  instruct  the  commanding  officer  of 
such  soldier  to  cause  him  to  appear  for  trial  at  the  proper 
tune.    XXI,  457. 

7.  An  of&cer  or  soldier  accused  as  indicated  by  the  Article, 
though  he  may  be  willing  and  may  desire  to  surrender  him- 
self to  the  civil  authorities,  or  to  appear  before  the  civil  court, 
should  not  in  general  be  permitted  to  do  so,  but  should  be 
required  to  await  the  formal  application.     XXXI,  022. 

8.  In  view  of  the  obligation  devolved  by  this  Article  upon 
officers  of  the  Army,  a  post  commander  would  properly  be 
required  to  apprehend  and  hold  for  surrender  to  the  civil  au- 
thorities a  soldier  who,  having  been  once  surrendered  under 
the  Article,  had  escaped  and  returned  to  the  post.  ^  XXVII, 
320. 

SIXTIETH  ARTICLE. 
"Any  person  in  the  military  service  of  the  United  States  who  makes  or 
causes  to  be  made  any  claim  against  the  United  States,  or  any  officer 
thereof,  knowing  such  claim  to  he  false  or  fraudulent ;  or 

^See  Civil  Process,  §  4.  It  is  further  held,  in  Ex  parte 
McEoberts,  10  Iowa,  003,  that  the  provisions  of  the  Article 
apply  only  to  oflftcers  and  soldiers  while  within  the  immediate 
control  and  jurisdiction  of  the  military  authorities,  and  there- 
fore do  not  apply  to  a  case  of  a  soldier  ahsent  on  furlough  ; 
but  that  such  a  soldier,  pending  his  furlough,  may  be  arrested 
in  the  same  manner  as  any  civilian. 

'  Compare  YI  Opins.  of  Attys.  Gen.  423. 

^  See  a  case  to  a  similar  effect  published  in  G.  O.  7,  Dept.  of 
the  South,  1871. 


32  ARTICLES  OF  WAR. 

**  Who  presents  or  causes  to  be  presented  to  any  person  in  the  civil  or 
military  service  thereof,  for  approval  or  payment,  any  claim  against  the 
United  States  or  any  officer  thereof,  knowing  such  claim  to  be  false  or 
fraudulent ;  or 

"  Who  enters  into  any  agreement  or  conspiracy  to  defraud  the  United 
States  by  obtaining,  or  aiding  others  to  obtain,  the  allowance  or  payment 
of  any  false  or  fraudulent  claim  ;  or 

''  Who,  for  the  j)urpose  of  obtaining,  or  aiding  others  to  obtain,  the  ap- 
proval, allowance,  or  payment  of  any  claim  against  the  United  States  or 
against  any  ofScer  thereof,  makes  or  uses,  or  i)rocure8  or  advises  the 
making  or  use  of,  any  writing,  or  other  i)aper,  knowing  the  same  to  con- 
tain any  ialse  or  fraudulent  statement ;  or 

''Who,  for  the  xmrpose  of  obtaining,  or  aiding  others  to  obtain,  the  ap- 
proval, allowance,  or  payment  of  any  claim  against  the  United  States  or 
any  officer  thereof,  makes,  or  procures  or  advises  the  making  of,  any  oath 
to  any  fact  or  to  any  writing  or  other  paper,  knowing  such  oath  to  be 
false ;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  ap- 
proval, allowance,  or  payment  of  any  claim  against  the  United  States  or 
any  officer  thereof,  forges  or  counterfeits,  or  x)rocures  or  advises  the  forg- 
ing or  counterfeiting  of,  any  signature  upon  any  writing  or  other  paper, 
or  uses  or  procures  or  advises  the  use  of,  any  such  signature,  knowing  the 
same  to  be  forged  or  counterfeited  ;  or 

"  Who,  having  charge,  possession,  custody,  or  control  of  any  money  or 
other  property  of  the  United  States,  furnished  or  intended  for  the  military 
service  thereof,  knowingly  delivers,  or  causes  to  be  delivered,  to  any  per- 
sons having  authority  to  receive  the  same,  any  amount  thereof  less  than 
fchat  for  which  he  receives  a  certificate  or  receipt ;  or 

''Who,  being  authorized  to  make  or  deliver  any  paper  certifying  the 
receipt  of  any  j)roperty  of  the  United  States,  furnished  or  intended  for 
the  military  service  thereof,  makes,  or  delivers  to  any  person,  such  writ- 
ing, without  having  full  knowledge  of  the  truth  of  the  statements  therein 
contained,  and  with  intent  to  defraud  the  United  States  ;  or 

"Who  steals,  embezzles,  knowingly  and  willfully  misappropriates,  ap- 
plies to  his  own  use  or  benefit,  or  wrongfully  or  knowingly  sells  or  dis- 
poses of  any  ordnance,  arms,  equipments,  ammunitiou,  clothing,  subsist- 
ence -tores,  money,  or  other  property  of  the  United  States,  furnished  or 
intended  for  the  military  service  thereof;  or 

"Who  knowingly  purchases,  or  receives  in  pledge  for  any  obligation 
or  indebtedness,  from  any  soldier,  officer,  or  other  person  who  is  a  part  of 
or  employed  in  said  forces  or  service,  any  ordnance,  arms,  equipments, 
ammunition,  clothing,  subsistence  stores,  or  other  property  of  the  United 
States,  such  soldier,  officer,  or  other  x)erson  not  having  lawful  right  to  sell 
or  pledge  the  same, — 

"  Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprisonment,  or 
by  such  other  i)nnishnient  as  a  court-martial  may  adjudge.  And  if  any 
person,  being  guilty  of  any  of  the  offences  aforesaid,  Avhile  in  the  military 
service  of  the  United  States,  receives  his  discharge,  or  is  dismissed  from 
the  service,  he  shall  continue  to  be  liable  to  be  arrested  and  held  for  trial 
and  sentence  by  a  court-martial,  in  the  same  manner  and  to  the  same  ex- 
tent as  if  he  had  not  received  such  discharge  nor  been  dismissed." 


ARTICLES   OF  WAR.  33 

1.  The  offence  knovrii  as  the  duplicating  of  pay  rolls,  where 
it  involves,  as  it  generally  does,  a  presenting  or  a  causing  to  be 
l)rese.:ted  of  a  false  or  fraudulent  claim  against  the  United 
States,  is  properly  chargeable  under  this  Article.  XXXVII, 
356  J  XLII,  500. 

2.  Where  an  officer  wlio  had  been  sentenced  to  forfeit  all 
pay  due,  but  whose  sentence  had  not  yet  been  approved  or 
published,  i)resented  pay  accounts  to  the  paymaster  for  his 
pay,  and  received  the  amount  of  the  same ;  held  that  he  was 
not  triable  for  the  offence  of  i)resenting  a  fraudulent  claim 
under  this  Article.     X,  009. 

3.  The  presenting  of  false  and  fraudulent  claims  for  horses 
lost  in  battle,  for  recruiting  expenses,  and  for  rewards  for  the 
arrest  of  deserters — held  offences  within  paragrai)hs  1, 2,  and 
4,  of  this  Article.     XII,  10,  38  ;  XIII,  108. 

4.  Where  a  soldier,  in  order  to  procure  his  discharge  from 
the  service  and  the  payment  thereupon  of  a  considerable 
amount  not  in  fact  due  him,  forged  .the  name  of  his  command- 
ing officer  on  a  discharge  x)aper  and  a  "  final  statement"  paper, 
and  presented  the  same  to  a  paymaster;  held  that  he  was 
chargeable  with  offences  defined  in  the  2d,  4th  and  Gth  para- 
graphs of  this  Article.     XXYIII,  008. 

5.  Where  a  disbursing  officer,  having  caused  a  creditor  of 
the  United  States  to  sign  a  receipt  in  blank,  paid  him  a  less 
sum  than  was  due  him,  and  afterwards  inserted  the  true 
amount  due  in  the  receipt,  so  as  to  obtain  credit  with  the 
United  States  for  the  greater  sum  ;  held  that  he  was  charge- 
able with  the  offence  defined  in  the  7th  paragraph  of  this 
Article.     XXI,  330. 

6.  Where  an  officer,  by  collusion  with  a  contractor,  who 
had  contracted  for  the  delivery  of  military  supplies,  received 
for  a  pecuniary  consideration  from  the  latter  a  less  amount 
of  supplies  than  the  Uidted  States  was  entitled  to  under  the 
contract,  while  at  the  same  time  giving  him  a  voucher  certi- 
fying on  its  face  the  delivery  of  the  whole  amount, — held 
that  such  officer  was  chargeable  with  an  ofience  of  the  class 
defined  in  the  8th  paragraph  of  this  Article.     XXXY,  420. 

7.  In  a  case  of  embezzlement  of  public  funds  *  or  property, 

^  ^'All  money  lawfully  in  the  hands  of  a  public  officer,  and 
for  which  he  is  accountable,  is  monev  of  the  United  States.^ 
United  States  v.  Watkins,  3  Cranch  0.  0.  441. 
3d 


34  ARTICLES  OF   WAR. 

charged  under  tliis  Article,  it  is  not  necessary  to  allege  in 
terms,  or  to  i^rove,  an  intent  to  defraud  the  United  States.  It 
is  the  act  of  legal  embezzlement  which  is  made  the  offence, 
irrespective  of  the  purpose  or  motive  of  such  act.  Y,  498 ; 
XXIII,  69.     [See  §  9,  infra.] 

8.  In  order  to  determine  whether  certain  acts  or  conduct 
may  properly  be  charged  as  constituting  embezzlement  of 
fjublic  money  under  the  ninth  i^aragraph  of  this  Article,  the 
Sections  of  the  Eevised  Statutes — especially  those  contained 
in  Ch.  G  of  Title  LXX — may  i^roi^erly  be  recurred  to.  Acts 
here  specified  as  constituting  embezzlements  in  law  may, 
when  committed  by  officers  of  the  army,  be  charged  as  em- 
bezzlements under  this  Article,  and  the  rules  of  evidence 
established  by  these  Sections  may  also  be  api)lied,  where  aj)- 
posite,  to  military  cases.^  But  as  to  the  penalties  prescribed 
in  the  same,  these,  though  useful  as  going  to  indicate  a  reason- 
able measure  of  punishment  Avhen  imprisonment  or  fine  is 
proposed  to  be  adjudged,  ,are  of  course  in  no  respect  obliga- 
tory upon  military  tribunals,  and  any  approved  military  iien- 
alty  or  penalties,  such  as  dismissal,  suspension,  &c.,  may  be 
imposed  by  courts-martial  upon  conviction  of  embezzlement, 
either  alone  or  in  connection  with  imprisonment  or  fine. 
XXXVIII,  245,  G2G.  So,  a  term  of  confinement,  or  a  fine, 
(or  fori^iture  of  pay,)  in  excess  of  the  penalties  authorized  for 
civil  offenders,  may  legally  be  adjudged  by  such  courts. 
XXXVIII,  245. 

9.  The  withdrawing,  by  a  disbursing  officer  of  the  army, 
from  an  authorized  depository,  of  public  funds  for  a  i)urpose 
not  prescribed  or  authorized  by  law — as  for  personal  use,  or 
to  pay  claims  not  due  from  the  United  States  or  i)ayable  by 
such  officer — being  a  form  of  embezzlement  defined  by  Sec. 
5488,  Eev.  Sts.,  lield  i)roperly  charged  as  embezzlement  under 
the  i)resent  Article ;  and  convictions  of  officers  upon  such  a 
charge,  held  authorized  and  legal.  XXV,  583;  XXVII,  414; 
XXXIII,  291,  48G;  XXXVIII,  9G;  XXXIX,  IG. 

But  held  that  to  constitute  such  embezzlement,  it  is  not 
necessary  that  there  should  have  been  a  personal  conversion 

^  See  cases  in  which  embezzlements  of  this  class  were  charged 
against  officers  of  the  army,  in  G.  O.  1,  War  Dept.,  18G1;"G. 
C.  M.O.  43,  8G,  Ildqrs.  of  Armv,  1SG8;  do.  21,  War  Dept. 
1871 ;  do.  27,  34,  Id.  1872 ;  do.  81,  Id.,  1874 ;  do.  52,  Hdqrs.  of 
Army,  1877. 


ARTICLES   OF   WAR.  35 

of  the  funds  or  an  intent  to  defraud.  The  object  of  the  law 
is  to  provide  a  safeguard  against  the  misuse  and  diverting 
from  their  appointed  purpose  of  public  moneys,  and  the  in- 
tent of  the  offender,  whether  fraudulent  or  not,  enters  in  no 
respect  into  the  statutory  crime. ^  If  the  withdrawal  or  ap- 
plication of  the  funds  is  simply  one  not  prescribed  or  author- 
ized by  law,  the  offence  is  complete."  XXV,  583 ;'  XXVII, 
IIG;  XXXIII,  494;  XXXVIII,  96;  XXXIX,  IG.  An  ab- 
sence, however,  of  criminal  motive  in  the  illegal  act  may  be 
shown  in  mitigation  of  sentence  in  a  military  case.  XXXIII, 
494. 

So,  held  that  it  constituted  no  defence  to  a  charge  of  an  em- 
bezzlement of  this  class,  (though  it  might  be  shown  in  miti- 
gation of  punishment,)  that  the  officer  had  restored  to  the 
public  depository  the  funds  illegally  withdrawn  by  him  before 
a  formal  demand  was  made  for  the  same.     XXV,  583. 

10.  It  is  a  defence  to  a  charge  (under  this  Article)  of  the 
embezzlement  defined  in  Sec.  5490,  Eev.  Sts.,  as  consisting  in 
a  failure  to  safely  keep  public  moneys  by  an  officer  charged 
Avith  the  safekeeping  of  the  same,  that  the  funds  alleged  to 
have  been  embezzled  were,  without  fault  on  the  part  of  the 
accused,  lost  in  transportation,  or  fraudulently  or  feloniously 
abstracted.     I,  435. 

11.  Sec.  5495,  Eev.  Sts.,  provides  that  the  refusal  of  any  per- 
son charged  with  the  disbursement  of  public  moneys,  promptly 
to  transfer  or  disburse  the  funds  in  his  hands  "upon  the  legal 
requirement  of  an  authorized  officer,  shall  be  deemed,  upon 
the  trial  of  any  indictment  against  such  i)erson  for  embezzle- 
ment, as  prima  facie  evidence  of  such  embezzlement."  Ap- 
plying this  rule  to  a  military  case,  it  is  clear  that,  in  the  event 
of  such  a  refusal  by  a  disbursing  officer  of  the  army,  the 
burden  of  proof  would  be  upon  him  to  show  that  his  pro- 
ceeding was  justified,  and  that  it  would  not  be  for  the  prose- 
cution to  show  what  had  become  of  the  funds.  So,  where  an 
acting  commissary  of  subsistence,  on  being  relieved,  failed 
to  turn  over  the  public  moneys  in  his  hands  to  his  successor, 
or  to  his  post  commander  when  ordered  to  do  so ;  or  to  pro- 


^  See  remarks  of  the  Secretary  of  War  in  G.  0.  M.  0. 34,  War 
Dept.,  1872. 
-  Compare  XIV  Opins.  of  Attys.  Gen.,  473. 


36  ARTICLES  OF  WAR. 

duce  such  moueys,  exhibit  vouchers  for  the  same,  or  other- 
wise accouut  for  their  use,  wheu  so  required  by  his  depart- 
ment commander ;  held  that  he  was  properly  charged  with,  and 
convicted  of,  embezzlement  under  this  Article.    XXII,  546. 

12.  Where  a  quartermaster  used  temporarily  with  his  pri- 
vate carriage  a  pair  of  government  horses  in  his  charge;  held 
that  he  was  not  properly  chargeable  with  embezzlement,  but 
with  the  offence,  under  this  Article,  of  '  knowingly  applying 
to  his  own  use  and  benefit  property  of  the  United  States, 
furnished  for  the  military  service.'     lY,  421. 

13.  The  misapprojwiation  specified  in  the  Article  need  not 
be  an  appropriation  for  the  i)ersonal  i)rofit  of  the  accused. 
The  words  "to  his  own  use  or  benefit,"  qualify  only  the  term 
"applies."     XXIII,  69. 

14.  In  charging  a  stealing,  embezzlement,  misappropriation, 
&c.,  under  this  Article,  it  is  not  necessary  to  allege  that  the 
funds  or  i^roperty  were  "furnished  or  intended  for  the  mili- 
tary service" :  it  is  sufiicient  if  this  fact  appears  from  the  evi- 
dence, and  in  most  cases  it  will  be  inferable  from  the  very 
nature  of  the  proi)erty  itself — as  where,  for  exami)le,  the  same 
consists  of  "quartermaster  stores,"  "subsistence  stores,"  "ord- 
nance stores,"  &c.     XXIX,  299,  315. 

15.  Where  an  officer  of  the  quartermaster  department  used 
teams,  tools,  and  other  i^ublic  property,  in  his  possession  as 
such  ofiicer,  in  erecting  buildings,  &c.,  for  the  benefit  of  an 
association,  composed  mainly  of  civilians,  of  which  he  was  a 
member;  held  that  he  was  properly  chargeable  with  a  misap- 
propriation of  property  of  the  United  States.  X,  664.  And 
similarly  held  of  a  loaning  by  such  an  officer  of  public  prop- 
erty, (corn,)  to  a  contractor,  for  the  puri^ose  of  enabling  him 
to  fill  a  contract  made  with  the  United  States  through  another 
officer.^  XXIX,  26.  The  fact  that  a  practice  exists  in  a  ijost 
or  other  command  of  making  a  use,  (not  authorized  by  regu- 
lation or  order, )  of  government  property  for  private  puri)Oses, 
or  of  loaning  it  in  the  i)rospect  of  a  j)rompt  return,  can  con- 
stitute no  defence  to  a  charge  for  such  act  as  an  offence  under 
this  Article.  Such  i)ractice,  however,  if  sanctioned,  though 
improi)erly,  by  superior  authority,  may  be-  shown  in  evidence 
in  mitigation  of  sentence.     XXIX,  189. 


Compare  case  in  G.  C.  M.  O.  46,  Ildqrs.  of  Army,  1869. 


ARTICLES   OF   WAR.  37 

10.  The  offence  of  stealing,  indicated  in  the  9th  paragraph 
of  this  Article,  consists  in  a  larceny  of  "property  of  the  United 
States  furnished  or  intended  for  the  military  service."  Except 
in  time  of  war,  (see  Fifty-eighth  Article,  §  1,)  larceny  of 
oilier  property  can  be  charged  as  a  military  offence  only  when 
cognizable  under  Art.  02,  as  directly  prejudicing  good  order 
and  military  discipline.  XXX,  250.  [See  Sixty- seco]N^d 
Article,  §  2.] 

17.  Held  that  under  the  concluding  provisiou  of  this  Article,^ 
a  soldier  might  be  brought  to  trial  for  an  offence  of  the  class 
specified  therein,  while  held  imprisoned,  after  dishonorable 
discharge,  under  a  sentence  imposed  for  another  offence,  pro- 
vided of  course  the  two  years'  limitation  of  Art.  103  had  not 
expired.  XXXI,  34.  [See  One  hundred  and  third  Arti- 
cle, §  9.] 

18.  In  view  of  the  words,  "in  the  same  manner,"  employed 
in  the  last  paragraph  of  this  Article,  considered  in  connection 
with  the  77th  Article  and  Sec.  1058,  Eev.  Sts.,  held  that  a  vol- 
unteer or  militia  officer  or  soldier  could  be  tried,  after  his  dis- 
charge from  the  service,  for  a  breach  of  this  Article  committed 
while  in  the  service,  only  by  a  court  composed  in  the  one  case 
of  other  than  regular  officers  and  in  the  other  of  militia  officers. 
XIX,  070  J  XXVI,  100.    [See  Seventy-seventh  Article.] 

SIXTY-FIEST  AETICLE. 

"Any  officer  who  is  convicted  of  conduct  unbecoming  an  officer  and  a 
gentleman  shall  be  dismissed  from  the  ser'fice." 

1.  To  constitute  an  offence  under  this  Article,  the  conduct 
need  not  be  "scandalous  and  infamous."  These  words,  con. 
tained  in  the  original  article  of  1775,  were  dropped  in  the  form 
adopted  in  1800.     Xor  is  it  essential  that  the  act   should 

^  Whether  this  provision,  in  subjecting  officers  and  soldiers 
discharged,  mustered-out,  <S:c.,  and  become  civiUans^  to  trial 
by  court  martial  in  the  same  manner  as  if  they  were  a  part 
of  the  army,  is  constitutional,  is  a  question  which  is  believed 
not  to  have  been  judicially  passed  upon.  Probably  originally 
inserted  in  the  Act  of  March  2,  1803,  (from  which^he  Article 
is  repeated,)  as  in  the  nature  of  a  war  measure,  it  was  in  fact 
relied  upon,  as  giving  jurisdiction,  in  but  a  small  number  of 
cases  even  during  the  war,  and  since  that  period  no  case  is 
known  in  which  the  exceptional  jurisdiction  conferred  has 
been  taken  advantage  of.  [See  Court  Martial,  II,  §  7, 
note.l 


38  ARTICLES   OF   WAR. 

compromise  the  Jionor  of  tlie  officer.^  It  is  only  necessary 
that  the  conduct  should  be  such  as  is  at  once  disgraceful 
or  disreputable  and  manifestly  unbefitting  both  an  officer  of 
the  army  and  a  gentleman .^  An  act,  however,  which  is  only 
slightly  discreditable  is  not,  in  i^ractice,  made  the  subject  of 
a  charge  under  this  Article.  The  Article,  in  making  the  pun- 
ishment of  dismissal  imperative  in  all  cases,  evidently  con- 
temi)lates  that  the  conduct,  while  unfitting  the  i3arty  for  the 
society  of  men  of  a  scrupulous  sense  of  decency  and  honor, 
shall  exhibit  him  as  unworthy  to  hold  a  commission  in  the 
army.    II,  52.     [And  see  §  10,  infra.] 

2.  Knowingly  making  to  a  superior  a  false  official  report 
lield  chargeable  under  this  Article.  I,  305  j  XXVII,  123. 
So  of  a  deliberately  false  official  certificate  as  to  the  truth  or 
correctness  of  an  official  voucher,  roll,  return,  &c.  XXYII, 
290.  So  of  any  deliberately  false  official  statement,  written 
or  verbal,  of  a  material  character.  XXVII,  123.  So,  where 
an  officer  caused  the  sergeant  of  the  guard  to  enter  in  the 
guard  book  a  false  official  report  that  he  (the  officer)  had  duly 
visited  the  guard  at  certain  hours  as  officer  of  the  day,  (wheu 
he  had  in  fact  been  guilty  of  a  neglect  of  duty  iu  this  par- 
ticular,) and  thereupon  himself  signed  such  report  and  sub- 
mitted it  to  his  post  commander ;  held  that  his  conduct  was 
chargeable  as  an  offence  under  this  Article.     XLII,  585. 

3.  The  following  acts,  committed  in  a  particular  case,  held  to 
be  offences  within  this  Article : — preferring  false  accusations 
against  an  officer  j  attempting  to  induce  an  officer  to  join  in 
a  fraud  upon  the  United  States ;  attempt  at  subornation  of 
perjury.     XXVII,  435. 

4.  An  attemi)t,  by  corrupt  means,  to  induce  an  officer  to 
give  a  vote,  as  a  member  of  a  post  council  of  administration, 
in  favor  of  a  particular  candidate  for  the  tradershii)  of  the 
post,  held  ])Yopevly  charged  under  this  Article.  XXXVIII, 
071. 

'  G.  O.  25,  Dept.  of  the  Missouri,  1867. 

'"An  officer  of  the  army  is  bound  by  the  law  to  be  a  gen- 
tleman." Atty.  Gen.  Gushing,  VI  Opins.  417.  See  definitions 
or  partial  definitions  of  the  class  of  offences  contemplated  by 
this  Article,  in  G.  O.  45,  Army  of  the  Potomac,  1804;  do.  29, 
Dept.  of  California,  1805;  do.  7,  Dept.  of  IJie  Lakes,  1872; 
G.  0.  M.  O.  09,  Dept.  of  the  East,  1870;  do.  41,  Hdqrs.  of 
Army,  1879. 


ARTICLES  OF  WAR.  39 

5.  Meld  that  a  surgeon  wlio  appropriated  to  his  ovfn  per- 
sonal use,  and  to  that  of  his  private  mess,  food  furnished 
by  the  government  for  hospital  patients,  was  guilty  of  an 
offence  under  this  Article.    II,  33. 

6.  The  violation  by  an  officer  of  a  promise  or  pledge  on 
honor,  given  by  him  to  a  superior — in  consideration  of  the 
withdrawal  by  the  latter  of  charges  preferred  for  drunken- 
ness— that  he  would  abstain  for  the  future,  or  for  a  certain 
period  from  the  use  of  intoxicating  drink ;  held  chargeable 
under  this  Article.     XXVII,  297;  XXIX,  151. 

7.  Where  an  officer  appeared  in  uniform  at  a  theatre  drunk, 
and  conducted  himself  in  such  a  disorderly  manner  as  to 
attract  the  attention  of  officers  and  soldiers  who  were  present, 
as  Vv^ell  as  the  audience  generally  j  lield  that  he  was  properly 
convicted  of  a  violation  of  this  Article.    XXV,  479. 

8.  Engaging,  when  intoxicated,  in  a  fight  with  another 
officer,  in  the  billiard  room  at  a  post  trader's  establishment, 
in  the  presence  of  other  officers  and  of  civilians,  held  an 
olfence  within  this  Article.  XLII,  478.  So  held  of  an  eji- 
gaging  in  a  disorderly  and  violent  altercation  and  fight  with 
another  officer  in  a  public  i)lace  at  a  military  post  in  sight  of 
officers  and  soldiers.  XXVII,  635.  So  held  of  an  exhibition 
of  himself  by  an  officer,  in  a  public  place,  in  a  grossly 
drunken  condition.     XXXVIII,  140. 

9.  Gambling  with  enlisted  men  in  a  public  place,  held  an 
offence  within  this  Article.  XXXVII,  127.  And  so  of  fre- 
quenting in  uniform  a  disreputable  gambling  house  and  gam- 
bling with  gamesters.    XLII,  633. 

10.  To  justify  a  charge  under  this  Article,  it  is  not  neces- 
sary that  the  act  or  conduct  of  the  officer  should  be  immedi 
ately  connected  with  or  should  directly  affect  the  military 
service.  It  is  sufiicient  that  it  is  morally  wrong  and  of  such 
a  nature  that,  while  dishonoring  or  disgracing  him  as  a  gen- 
tleman, it  compromises  his  character  and  position  as  an  officer 
of  the  Army.     V,  148  ;  XXIV,  b^ ;  XXVIII,  649. 

11.  Thus,  though  a  mere  neglect  on  the  part  of  an  officer 
to  satisfy  his  private  pecuniary  obligations  will  not  ordinarily 
furnish  sufficient  ground  for  charges  against  him,  (XXVI, 
551,)  yet  where  the  debt  has  been  dishonorably  incurred, — as 
where  money  has  bi^en  borrowed  under  false  promises  or  rep- 
resentations as  to  payment  or  security,  or  where  the  non- 


40  ARTICLES   OF  WAR. 

payment  lias  been  accompanied  by  such  circumstances  of 
fraud,  deceit,  evasion,  denial  of  indebtedness,  &c.,  as  to  amount 
to  dislionorable  conduct, — the  continued  non-x>ayment,  in  con- 
nection with  the  facts  or  circumstances  rendering  it  dishonor- 
able, may  properly  be  deemed  to  constitute  an  offence  charge- 
able under  this  Article.^  XIII,  425  5  XXIII,  504^  XXVII, 
430  5  XXVIII,  328;  XXIX,  208. 

12.  Where  an  officer,  in  payment  of  a  debt,  gave  his  check 
upon  a  bank,  representing  at  the  same  time  that  he  had  funds 
there,  when  in  fiict,  as  he  was  well  aware,  he  had  none ;  held  that 
he  was  amenable  to  a  charge  under  this  Article.    XIII,  207. 

13.  Xeglect  or  refusal  to  pay  honest  debts  may  constitute 
an  offence  under  this  Article,  where  so  repeated  or  persistent 
as  to  furnish  reasonable  ground  for  inferring  that  the  officer 
designs  or  desires  to  avoid,  or  indefinitely  defer,  a  settlement. 
This,  especially,  where  the  debts  are  due  to  soldiers  for  money 
borrowed  from,  or  held  in  trust  for,  them.   XXI,  035 ;  XLII,  54. 

14.  An  indifference  on  the  part  of  an  ofiicer  to  his  pecuniary 
obligations,  of  so  marked  and  inexcusable  a  character  as  to 
induce  repeated  just  complaints  to  his  military  commander 
or  the  Secretary  of  War  by  his  creditors,  and  to  bring  dis- 
credit and  scandal  upon  the  military  service,  Jield^  to  constitute 
an  offence  within  the  purview  of  this  Article.^    XXIII,  504. 

15.  Where  certain  officers  of  a  colored  regiment  made  a 
practice  of  loaning  to  men  of  the  regiment  small  amounts  of 
money,  for  which  they  charged  and  received  in  payment  at 
the  rate  of  two  dollars  for  one  at  the  next  pay  day ;  Jield 
that  they  were  properly  convicted  of  a  violation  of  this  Ar- 
ticle.    XXIII,  200  ;  XXIV,  72. 


^  Oases  of  officers  made  amenable  to  trial  by  court-martial, 
under  this  Article,  for  the  non-fulfilment  of  pecuniary  obliga- 
tions to  other  ofiicers,  enlisted  men,  post  traders  and  civilians, 
are  found  in  the  following  General  Orders  of  the  War  Dept., 
and  IId(]rs.  of  Army: — Xo.  87,  of  1800;  do.  3,  oij^  04,  of 
1809 ;  do.  15,  of  1870 ;  do.  17,  of  1871 ;  do.  22,  40,  of  1872 ; 
do.  K),  of  1873;  do.  25,  50,  08,  82,  of  1874;  do.  25,  of  1875; 
do.  100,  of  1870  ;  do.  40,  of  1877. 

^  See,  on  the  subject  of  tliese  comphiints,  the  Circular,  issued 
originally  from  the  War  Department,  (A.  G.  O.,)  on  Feb.  8, 
1872,  in  which  the  Secretary  of  War  "  declares  his  intention 
to  bring  to  trial  by  court-martial,"  under  the  01st  Article  of 
War,  ''any  officer  who,  after  due  notice,  shall  fail  to  quiet 
such  claims  against  him.'' 


ARTICLES   OF  WAR.  41 

W.  Where  an  officer  stationed  in  Utah  was  married  there 
by  a  Mormon  official  to  a  female  with  whom  he  lived  as  his 
wife,  althongh  having  at  the  same  time  a  legal  wife  residing 
in  the  States ;  held  that  he  might  properly  be  brought  to  trial 
by  general  court-martial  for  a  violation  of  this  article.  XXIII, 
164.  So  held  of  an  officer  who  committed  bigamy  by  pub- 
licly- contracting  marriage  in  the  United  States,  while  having 
a  legal  wife  living  in  Scotland  whom  he  had  abandoned. 
XLII,  98. 

17.  Abusing  and  assaulting  his  wife  by  an  officer  at  a  mil- 
itary post,  in  so  public  and  marked  a  manner  as  to  disturb 
the  post  and  bring  scandal  upon  the  service,  held  chargeable 
as  an  offence  under  this  Article.     XXXI,  395. 

18.  The  institution  by  an  officer  of  fraudulent  proceedings 
against  his  wife  for  divorce,  and  the  manufacture  of  false 
testimony  to  be  used  against  her  in  the  suit,  in  connection 
with  an  abandonment  of  her  and  neglect  to  i)rovide  for  her 
support,  held  to  constitufe  "conduct  unbecoming  an  officer 
and  a  g'entleraan  "  in  the  sense  of  this  Article.    XLIII,  21. 

19.  According  to  the  accepted  i)rinciple  of  interpretation, 
by  which  Articles  of  War  enjoining  a  specific  punishment  or 
punishments,  are  held  to  be  in  this  particular  both  manda- 
tory and  exclusive,  no  sentence  other  than  one  of  simple  dis- 
missal can  legally  be  adjudged  upon  a  conviction  under  this 
Article.  A  sentence  which  adds  to  dismissal  any  other  i>en- 
alty  or  penalties — as  disqualification  for  office,  forfeiture  ot 
pay,  imprisonment,  &c.,  is  valid  and  operative  only  as  to  the 
dismissal,  and  as  to  the  rest,  shoidd  be  formally  disapproved 
as  being  unauthorized  and  of  no  effect.  lY,  283  ;  IX,  072 ; 
XIY,  330.     [See  Sentence  and  PuNisniyiENT,  §  3.] 

See  EIGHTH  ARTICLE,  $  8. 

SIXTY-SECOND  ARTICLE,  ^  6. 
FINDING,  ^  10,  11,  12. 
GAMBLING. 
STATEMENT,  $  5. 

SIXTY-SECOXD  ARTICLE. 

''All  crimes  not  capital,  and  all  disorders  and  neglects,  wliicli  officers 
and  soldiers  maybe  guilty  of,  to  the  prejudice  of  good  order  and  military 
discipline,  though  not  mentioned  in  the  foregoing  articles  of  War,  are  to 
be  taken  cognizance  of  by  a  general  or  a  regimeutal,  garrison,  or  field- 
officers'  court-martial,  according  to  the  nature  and  degree  of  the  offence, 
and  punished  at  the  discretion  of  such  court." 


42  ARTICLES   OF   WAR. 

1.  The  word  ^'crimes"  in  this  Article,  distinguished  as  it 
is  from  ''neglects"  and  "disorders,"  means  civil  crimes — 
as  homicide,  robberj^,  arson,  larceny,  &c.  "  Capital"  crimes, 
{i.  €.  criiiies  capitally  x>unishable,)  including  murder,  or  any 
grade  of  murder,  made  capital  by  statute,  connot  be  taken 
cognizance  of  by  courts-martial  under  this  Article.  I,  473 ; 
VII,  429,  405 ;  XI,  176  ;  XXIX,  257  ;  XXXII,  478,  522,  523  ; 
XXXiV,  350,  447;  XXXY,  585;  XXXVI,  3G4 ;  XLI,  50. 
[As  to  the  jurisdiction  of  courts-martial  in  cases  of  mnrder, 
&c.,  in  time  of  war,  see  Fifty-eighth  Article,  §  1.]  A 
crime  which  is  in  fact  mnrder,  and  capital  by  statute  of  the 
United  States  or  of  the  State  in  which  committed,  cannot  be 
brought  within  the  jurisdiction  of  a  court-martial  under  this 
Article,  by  charging  it  as  "  Manslaughter,  to  the  prejudice," 
&c.,  or  simply  as  "  Conduct  to  the  prejudice,"  &c.^  If  the 
specification,  or  the  proof,  sliows  that  the  crime  was  murder 
and  a  capital  oftence,  the  court  should  refuse  to  take  jurisdic- 
tion, or  to  find  or  sentence.  If  it  assume  to  do  so,  the  x)ro- 
ceedings  should  be  disapproved  as  unauthorized  and  void. 
XXXIII,  155;  XXXIV,  250;  XLII,  451. 

2.  The  term  "  to  the  i^rejudice  of  good  order  and  military 
discipline,"  qualifies,  according  to  the  accepted  interpretation, 
the  word  " crimes"  as  well  as  the  words  " disorders  and  neg- 
lects." Thus,  the  crime  of  larceny^  (sometimes  charged  as 
"  theft"  or  "  stealing,")  is  held  chargeable  under  this  Article, 
when  it  clearly  and  directly  affects  the  order  and  discix)line 
of  the  military  service.  Stealing,  for  examj^le,  from  a  fellow 
soldier  or  from  an  officer,  (or  stealing  of  i^ublic  money  or  other 
public  property,  where  the  offence  is  not  more  properly  a 
violation  of  Art.  CO,)  is  generally  so  chargeable.  XXIV, 
441;  XXVI,  23,  439,  487;  XXXVI,  214;  XXXVII,  131; 
XXXIX,  47.  And  so  of  any  other  crime,  (not  capital,)  the 
commission  of  which  has  directly  i)rejudiced  military  disci- 
pline. As  for  example,  manslaughter,  (or  homicide  not 
amounting  to  murder — see  §  1,)  of  a  soldier.  XXV,  592; 
XXXI,  87,  278;  XXXIII,  155;  XXXVI,  6(>7 ;  XXXVII, 
380 ;  XLI,  188 :  Assault  with  intent  to  kill  a  fellow  soldier. 

^  See  this  opinion,  as  given  in  an  important  case,  adopted 
by  the  Secretary  of  War  in  his  action  on  the  same  published 
in  G.  C.  M.  O.  3,  War  Dei)t.  1871;  also  tlie  similar  rul-ngs 
in  G.  C.  M.  O.  28,  Dept.  of  Texas,  1875 ;  G.  O.  14,  Dept.  of 
Dakota,  1808 ;  do.  104,  Army  of  the  Potomac,  1802. 


A-RTICLES   OF   WAR.  43 

XXVII,  587,  654:  Forgery  of  the  name  of  a  disbursing  or 
other  military  oflicer  to  a  government  check  or  draft.  XXIX, 
309  J  or  forgery  of  an  ohicer's  name  to  a  check  on  a  bank. 

XXXII,  623.  (And  this  whether  or  not  anything  was  in  fact 
lost  by  the  government  or  the  bank  or  officer :)  Forgery  in 
signing  the  name  of  a  fellow  soldier  to  a  certificate  of  indebt- 
edness to  a  sutler.  IX,  328 ;  or  to  an  order  on  a  paymaster. 
XLII,  562 :  Embezzlement  or  misappropriation  of  the  i)rop- 
erty  of  an  officer  or  soldier.     XXXIX,  201. 

3.  Otherwise,  in  general,  where  the  offence  is  not  such  as 
directly  to  affect  military  discipline,  (though  it  may  perhaps  do 
so  in  some  indirect  manner;)  as  manslaughter  of  a  6'a*/Zm?i, 
(XLI,  50  ;)  larceny  from  a  civilian,  (XXXI,  535;  XXXII,  (}od  ; 

XXXIII,  51 ;  XXXVI,  214,  587;  XXXVII,  131 ;  XXXVIII, 
12;)  burglary  of  the  house  of  a  civilian,  (XXXIX,  218;) — 
where  the  offence  is  not  committed  within  a  military  post,  or 
the  party  or  property  is  not  under  military  control,  protection, 
or  charge. '     (XXXIX,  218.) 

Where  the  crime  is  committed  against  a  person  wholly  un- 
connected with  the  militarj'  service,  and  no  military  order  or 
rule  of  discipline  is  violated  in  and  by  the  act  itself,  such  act 
will  not  be  rendered  a  military  offence  under  this  xVrticle 
by  the  fact  that  the  soldier  at  the  time  of  its  commission  is 
absent  from  his  post  without  authority.     XXXIX,  412. 

The  principle,  however,  that  a  court-martial  may  take  cog- 
nizance of  a  crime,  (other  than  capital,)  provided  it  directly 
affects  the  military  service  and  prejudices  military  discipline, 
is  not  required  to  be  api)lied  in  time  of  war  to  the  cases  of  the 
crimes  specified  in  Art.  58,  these  being  brought  at  such  a 
time  within  the  cognizance  of  military  courts,  whatever  the 
circumstances  of  the  case  or  relations  of  the  act  committed. 
[See  Fifty-eighth  Article,  §  1.] 

4.  Xo  distinction  of  grand  and  petit  larceny  is  known  to 
military  law.  An  inferior  court  has,  under  this  Article,  the 
same  jurisdiction  of  larceny  as  has  a  general  court.     This 

^See,  as  sustaining  the  view  expressed  in  this  paragrai)h, 
the  remarks  and  action  of  the  reviewing  otlicers  in  the  follow- 
ing Orders:  G.  O.  Dept.  of  Washington,  1866;  do.  S^,  Dept. 
of  the  Cumberland,  1867;  do.  8.  Dept.  of  the  Columbia,  1872; 
do.  :y^,  Dept.  of  the  Platte,  1872;  G.  C.  31.  O.  27,  Id.,  1875; 
do.  ij'S^  Dept.  of  the  Missouri,  1860 ;  do.  5,  Dept.  of  Texas, 
1871 ;  do.  85,  Dept.  of  Dakota,  1874. 


44  ARTICLES  OF  WAK. 

crime,  however,  is,  in  general,  one  requiriog  too  severe  a  sen- 
tence to  be  adequately  iKinished  by  an  inferior  court-mai'tial. 
XLII,  23. 

5.  Held  that  for  an  officer  to  print  and  publish  to  the  army 
a  criticism  ni^on  an  official  report,  made  by  another  officer  in 
the  course  of  his  dut^^  to  a  common  superior,  charging  that  such 
report  was  erroneous  and  made  with  an  improi^er  and  inter- 
ested motive,  was  gravely  unmilitary  conduct  to  the  preju- 
dice of  good  order  and  military  discipline.  An  officer  who 
deems  himself  wronged  by  an  official  act  of  another  officer 
should  prefer  charges  against  the  latter  or  appeal  for  redress 
to  the  proper  superior  authority.  He  is  not  permitted  to  re- 
sort to  any  form  of  piiblication  of  his  strictures  or  grievances. 
XXXIX,  431.  So  held  that  for  an  officer  to  publish  or  allow 
to  be  i)ublished  in  a  newspaper  of  general  circulation,  charges 
and  insinuations  against  a  brother  officer  by  which  his  char- 
acter for  courage  and  honesty  is  aspersed  and  he  is  held  up 
to  odium  and  ridicule  before  the  army  and  the  community — 
was  a  highly  unmilitary  proceeding  and  one  calling  for  a 
serious  x^unishment  upon  a  conviction  under  this  Article,  and 
this  whether  or  not  the  charges  as  i)ublished  were  true. 
XLII,  284.     [And  compare  Statement  §  5.] 

6.  The  following  offences  have  been  held  i^roperly  charged 
or  chargeable  under  this  Article,  as  disorders  or  neglects  "to 
the  prejudice  of  good  order  and  military  discipline : "  Drunk- 
enness or  drunken  and  disorderly  conduct,  at  a  post  or  in 
public,  committed  by  a  soldier  or  officer  when  not  "  on  duty," 
and  when  the  act,  (in  the  case  of  an  officer,)  does  not  more 
proi^erly  fall  within  the  description  of  Art.  61,  I,  463 ;  VIII, 
366 ;  XXIV,  79 ;  XXVII,  413  j  XXVIII,  575 :  Escape  from 
military  confinement  or  custody,  (where  not  amounting  to 
desertion — see  Desertion  §  4.)  X,  474 :  Breach  of  arrest, 
(where  not  properly  chargeable  under  Art.  65.)  XXIX,  175 : 
Malingering.  XX,  50 :  Disclosing  a  finding  or  sentence  of  a 
court  martial  in  contravention  of  the  oath  prescribed  in  Art. 
84  or  %:j.  XXI,  628 :  Refusing  to  testify,  when  duly  re- 
quired to  attend  and  give  evidence  as  a  witness  before  a  court 
martial.  XLII,  596 :  Joining  with  other  inferior  officers  of 
a  regiment  in  a  letter  to  the  colonel,  asking  him  to  resign. 
XLI,  226 :  Xeglecting,  by  a  senior  officer  "iiiesent  for  duty" 
with  his  regiment,  to  assume  the  command  of  the  same  when 


ARTICLES  OF  WAR.  45 

properly  devolved  upon  liim,  and  allowing  such  command  to 
be  exercised  by  a  junior.  XI,  172 :  Culiiable  malpractice  by 
a  medical  officer  in  the  course  of  his  regular  mihtary  duty. 
II,  378  :  Colluding  with  bounty  brokers  in  procuring  fraud- 
ulent enlistments  to  be  made  and  bounties  to  be  i^aid  thereon. 
XIV,  32G:  Violations,  by  an  officer,  of  par.  1000,  Army  Keg- 
ulations,  in  bidding-inand  purchasing,  through  another  party, 
public  property  sold  at  auction  by  himself  as  quartermaster; 
also,  in  imrchasing  subsistence  stores,  ostensibly  for  domestic 
use,  but  really  for  puri)oses  of  traffic.  XXXIX,  283.  [Viola- 
tions, indeed,  of  Army  Regulations  in  general  are  properly 
chargeable  under  this  Article  as  neglects,  (or  disorders,)  to 
the  prejudice  of  good  order  and  military  discipline  :]  Caus- 
ing, (by  a  quartermaster,)  troops  to  be  transported  upon  a 
steamer  known  b}"  him  to  be  unsafe.  XV,  301 :  Paying 
money  due  under  a  contract,  (for  military  supplies,)  to  a  party 
to  wbom,  with  the  knowledge  of  the  accused,  the  contract 
had  been  transferred  in  contravention  of  Sec.  3737,  Kev.  Sts. 
XLII,  44:  Inciting,  (by  an  officer,)  another  officer  to  chal- 
lenge him  to  fight  a  duel.  XXVIII,  G50  :  Assuming,  (by  a 
soldier,)  to  be  a  corporal  in  the  recruiting  service,  and  as  such 
enlisting  recruits  and  obtaining  board  and  lodging  for  him- 
self and  recruits  without  paying  for  same.  XXXIX,  221) : 
Procuring,  (by  a  soldier,)  whiskey  from  the  post  trader  by 
forging  an  order  for  the  same  in  the  name  of  a  laundress. 
XXXVII,  270 :  Breach  of  faith,  (by  a  soldier,)  in  refusing  to 
pay  the  post  trader  for  articles  obtained  on  credit,  upon  orders 
on  him  which  had  been  guaranteed  or  ai^proved  by  the  com- 
pany commander  ui^on  the  condition  that  the  amounts  should 
be  paid  on  the  next  pay-day.  XXVII,  270,  283, 503 ;  XXVIII, 
298;  XXIX,  574:  Gambling  by  officers  or  soldiers  under 
such  circumstances  as  to  imj)air  military  discipline,  (where 
the  conduct,  in  the  case  of  an  officer,  does  not  rather  consti- 
tute an  offence  under  Art.  Gl.)     XXXI,  404. 

7.  The  following  acts  or  offences  have  been  held  to  be  not 
properly  chargeable  under  this  Article  :  A  mere  breach  of 
the  peace  committed  by  a  soldier,  (while  absent  alone  and  at 
a  distance  from  his  post,  ^)  in  a  street  of  a  city,  and  in  violation 

^That  offences  committed  by  a  soldier  while  on  furlough 
will  not  in  general  so  directly  prejudice  military  discii^line  as 
to  render  him  amenable  to  trial  by  court  martial, — see  Court 
Martial  II  §13. 


46  ARTICLES  OF  WAR. 

of  a  municipal  ordnance.  XXXIII,  277 :  Pecuniary  trans- 
actions between  enlisted  men  of  a  culpable  character,  but  in 
their  private  capacity  and  not  directly  affecting  the  service 
or  impairing  military  discipline.  XI,  490;  XVIII,  380; 
XXXVI,  480 :  Speculating  and  gambling  in  stocks  by  a  dis- 
bursing officer,  the  proper  ^performance  of  whose  military 
duty  was  not  affected.  (But  recommended  that  he  be  relieved 
from  the  duty  of  disbursing  public  money.)  XVII,  22:  Ee- 
enlisting,  by  the  procurement  of  the  recruiting  ofiBcer,  after 
having  been  discharged  for  a  disability,  still  continuing  ;  the 
act  being  in  good  faith,  and  the  alleged  offence  being  com- 
mitted before  the  party  could  be  said  to  have  fully  come  into 
the  service.  VI,  203  :  Procuring  him  self — by  a  (late)  soldier 
— to  be  re- enlisted  by  exhibiting  a  false  honorable  discharge, 
when  he  had  in  fact  been  discharged  dishonorably,  the  act 
being  done  prior  to  the  consummation  of  the  enlistment,  and 
while  the  party  was  really  still  a  civilian.  XXXIX,  511: 
Making  and  signing  a  fnlse  ''  declaration  of  recruit,''  such 
declaration  being  only  a  i)reliminary  to  enlistment  and  thus 
made  before  the  party  had  actually  become  a  soldier.  XLII, 
203  :  Stating  by  a  parry  in  the  oath  of  enlistment  that  he 
knew  of  no  impediment  to  his  faithfully  serving,  after  falsely 
representing  in  the  "  declaration"  that  he  was  not  a  married 
man;  such  statement  being  made  only  concurrently  with  the 
act  of  enlistment,  not  after  the  same  was  fully  consummated, 
and  being  further  no  proper  part  of  the  statutory  oath.  XLII, 
203.  See  Second  xVrticle  §  2.  [The  existing  law  is  perhaps 
defective  in  not  making  acts  of  this  last  class  i)unishable  by 
the  civil  courts,  but  it  would  of  course  be  beyond  the  scope 
of  military  authority  to  attempt  to  supply  such  a  defect. 
XXXIX,  511.] 

8.  A  crime,  disorder,  or  neglect,  cognizable  under  this  Arti- 
cle, may  be  charged  either  by  its  name  simply,  as  '^Larceny," 
"Drunkenness,"  ''Xeglcct  of  duty,"  &c.;  or  by  its  name  with 
the  addition  of  the  words,  "  to  the  i)rejudice  of  good  order  and 
military  discipline;"  or  simply  as  "Conduct  to  the  prejudice 
of  good  order  and  military  discipline; "  or  as  "  Violation  of  the 
62d  Article  of  War."  It  is  immaterial  in  which  form  the 
charge  is  expressed,  provided  the  specification  sets  forth  facts 
constituting  an  act  prima  facie  prejudicial  to  good  order  and 
miUtary  discipline.     VII,  485;  IX,  328;  XI,  228;  XXVIII, 


AETICLES  OF  ^AH.  47 

486.  [See  Charge  §  2,  3.]  Whenever  tlie  charge  and  speci- 
ficatiou  taken  together  make  out  a  statement  of  an  act  clearly 
thus  prejudicial,  &c.,  the  pleading  will  be  regarded  as  sub- 
stantially sufficient  under  this  general  Article.  XVI,  316, 
551.    [See  Chaege  §  6.] 

9.  A  charge  of  ''  Conduct  to  the  prejudice,"  &c.,  with  a  spec- 
ification setting  forth  merely  trials  and  convictions  of  the  ac- 
cused for  x)revious  oflences,  is  not  a  pleading  of  an  offence 
under  this  Article,  or  of  any  military  offence.  XXVII,  331. 
[See  Charge  §  11.]  So  of  a  charge  of  "Habitual  Drunken- 
ness to  the  prejudice,"  &c.,  with  a  specification  setting  forth 
instances  in  which  the  accused  has  been  sentenced  for  acts 
of  drunkenness.  XXXIII,  175.  [See  Charge  §  10.]  Such 
charges  indeed  are  in  contravention  of  the  i)rinciple  that  a 
party  shall  not  be  twice  tried  for  the  same  offence.  So,  a 
specification  under  the  charge  of  "Conduct  to  the  prejudice," 
&c.,  which  sets  forth  not  a  distinct  offence  but  simjily  the  re- 
sult of  an  aggregation  of  similar  offences,  is  insufficient  in  law. 
XXXVI,  432.  TV^here  the  specifications  to  such  a  charge,  in  a 
case  of  an  officer,  set  forth  that  the  accused  was  "frequently" 
drunk,  "frequently"  absented  himself  without  authority  from 
his  command,  &c.,  held  that  these  specifications  were  properly 
struck  out  by  the  court  on  the  motion  of  the  accused.  In  such 
a  case  the  only  correct  pleading  is  a  general  charge  under  this 
Ai'ticle,  with  specifications  setting  forth — each  separately — 
some  i^articular  and  specific  instance  of  offence.  XXXVIII, 
211.    [See  Charge  §  9.] 

See  eighth  ARTICLE,  q  3. 

seyexteenth  article,  ^  4. 
twentieth  article,  ^  1,  2. 
twenty-first  article,  $  6,  9. 

TW^ENTY-SECOND  ARTICLE,  $  1,  2. 
TWENTY-SIXTH  ARTICLE. 
THIRTY-EIGHTH  ARTICLE,  $  2,  9. 
FIFTY-EIGHTH  ARTICLE,  o  1. 
SIXTY-FIFTH  ARTICLE,  ^  1. 
EIGHTY-SIXTH  ARTICLE,  $  3. 
ARMY  REGULATIONS,  §  5. 
BURGLARY. 
CADET,  $  8. 
CHARGE,  ^  4. 
COURT-M.VIiTIAL,  II  ^  12. 
FINDING,  $  10,  11,  12. 
GAMBLING. 


48  ARTICLES  OF  WAR. 

MANSLAUGHTER  ^  1. 

PERJURY  §  1. 

PRESIDING  OFFICER  OF  THE  COURT  §  4,  5. 

SENTENCE  AND  PUNISHMENT  $  2. 

STATEMENT  $  5. 

SIXTY-THIED  ARTICLE. 

"All  retainers  to  the  camp,  and  all  persons  serving  with  the  armies  (»f 
the  United  States  in  the  field,  thongh  not  enlisted  soldiers,  are  to  be  sub- 
ject to  orders,  according  to  the  rules  and  discipline  of  war." 

1.  The  accepted  interx)retation  of  this  Article  is  that  it  sub- 
jectSj  (in  time  of  war,)  the  classes  of  persons  specified,  not 
only  to  military  discipline  and  government  in  general,  but 
also  to  the  jurisdiction  of  courts  martial.  Individuals,  how- 
ever, of  the  class  termed  '^  retainers  to  the  camp^^''  as  well  as 
camp  followers  generally,  have  rarely  been  subjected  to  trial 
in  our  service.  For  breaches  of  discipline  committed  by  them , 
the  punishment  has  generally  been  expulsion  from  the  limits 
of  the  camp  and  dismissal  from  employment.     XXIII,  331. 

2.  The  discipline  authorized  by  the  Article  has  mainly  been 
applied  to  the  description  of  ^'•persons  serving  ivith  the  armies 
of  the  United  States  in  the  field ^^"^ — that  is  to  say,  civilians  serv- 
ing in  a  quasi  military  capacity  in  connection  with  troops,  in 
time  of  war  and  on  its  theatre.  Thus,  during  the  late  war, 
civilians  of  the  following  classes  were,  in  repeated  cases,  held 
amenable,  under  this  Article,  to  the  military  jurisdiction,  and 
subjected  to  trial  and  i)unishment  by  courts  martial : — Team- 
sters emx)loyed  with  wagon  trains,  watchmen,  laborers  and 
other  employees  of  the  quartermaster,  subsistence,  engi- 
neer, ordnance,  i^rovost-marshal,  &c.,  departments  5  ambu- 
lance drivers;  telegraph  operators 5  interpreters;  guides; 
paymasters'  clerks;  veterinary  surgeons;  '^contract''  sur- 
geons, nurses  and  hospital  atteiulants ;  conductors  and  engi- 
neers of  railroad  trains  oi)erated  ui)on  the  theatre  of  war  for 
military  purx)oses ;  officers  and  men  employed  on  government 
transports,  &c.  Ill,  209;  VII,  110;  IX,  111,  140;  XI,  493; 
XII,  370;  XIII,  459.  But  the  mere  fact  of  employment  by 
the  government  pending  a  general  war,  does  not  render  the 
civil  employee  so  amenable.  The  employment  must  be  in  con- 
nection with  the  army  in  the  field  and  on  the  theatre  of  hos- 
tilities.    Vir,  453,  511. 

3.  Held^  (June,  1803,)  that  the  force  employed  in  the  ^'  Earn 


ARTICLES  OF  WAK.  49 

Fleet"  on  western  waters  was  properly  a  coutingeiit  of  the 
army  ratber  than  of  the  navy,  and  accordingly  that  civilian 
commanders,  pilots  and  engineers  employed  upon  such  lleet 
during  the  war  and  before  the  enemy,  were  persons  serving 
witli  the  armies  in  the  held  in  the  sense  of  this  Artick',  and, 
therefore,  amenable  to  trial  by  court  martial.     II,  570. 

4.  Civil  employees  of  the  United  States  serving  with  the 
army  in  the  field  during  active  Avarfare  with  hostile  Indian 
tribes,  held  amenable  to  trial  by  court-martial  un<ler  this  Ar- 
ticle. XXXII,  38G.  A  civilian  who  acted  as  guide  to  a  com- 
mand operating  in  a  hostile  movement  during  an  Indian  war, 
held  so  triable.     XXXVI,  435. 

5.  Tlie  jurisdiction  authorized^  by  this  Article  cannot  be 
extended  to  civilians  employed  in  connection  with  the  army 
in  time  of  peace,  nor  to  civilians  employed  in  such  connection 
during  the  period  of  an  Indian  war  but  not  on  the  theatre  of 
such  war.  XXXVIII,  557.  In  view  of  the  limited  theatre 
of  Indian  wars,  this  excei)tional  jurisdiction  is  to  be  extended 
to  civilians,  on  account  of  oftences  committed  during  such 
wars,  with  even  greater  caution  than  in  a  general  war. 
XXXVIII,  G41. 

0.  Civilians  cannot  legally  be  subjected  to  military  jurisdic- 
tion by  the  authority  of  this  Article  after  the  war,  (wliether 
general  or  against  Indians,)  pending  which  their  offences 
were  committed,  has  terminated.  The  jurisdiction,  to  be  law- 
fully exercised,  must  be  exercised  during  the  status  beUi.^ 
XXXVIII,  041. 

7.  A  civil  emjdoyee  of  the  United  States  in  time  of  peace 
is  most  clearly  not  made  amenable  to  the  military  jurisdiction 
and  trial  by  court  martial  by  the  fact  that  he  is  empk)yed  in 
an  oftice  connected  with  the  administration  of  the  military 
branch  of  the  government.  Such  employment  does  not  make 
him  a  part  of  the  military  establishment,  nor  is  his  offence, 
however  nearly  it  may  affect  the  military  service,  ''  a  case 
arising  in  the  land  forces"  in  tlie  sense  of  Article  V  of  the 
Amendments  to  the  Constitution.  So  lieldy  (June,  1877,)  that 
a  civilian  clerk  employed  in  time  of  i)eace  in  the  oftice  of  the 
chief  quartermaster  at  San  Francisco  was  manifestly  not 
amenable,  under  this  Article  or  otherwise,  to  trial  by  court 

^  Compare  Military  Commission,  II  §  10, 11,  and  authori- 
ties there  cited. 
4d 


50  ARTICLES   OF   WAR. 

martial  for  the  embezzlement  or  misapplication  of  government 
funds  appropriated  for  the  quartermaster  department.^  And 
remarked  that  if  this  official  could  be  made  liable  to  such 
jurisdiction,  all  the  male  and  female  clerks  emijioyed  in  the 
War  Department  might  upon  the  same  principle  be  held  thus 
amenable  for  offences  against  the  government  committed  in 
connection  with  their  duties.  XXXVIII,  559.  And  so  held 
in  the  case  of  a  civilian  clerk  employed  at  Camp  Eobinson, 
Nebraska,  charged  ^Yith  conspiring  with  contractors  to  de- 
fraud the  United  States;  the  post  not  being  within  the  thea 
tre  of  any  Indian  war  or  hostilities  pending  at  the  period  of 
the  offence.^     XXXVIII,  G41. 

8.  Held^  (April,  1877,)  that  superintendents  of  national  ceme- 
teries, being  no  part  of  the  army,  but  civilians,  (see  Sec.  4874, 
Eev.  Sts.,)  were  clearly  not  amenable  to  military  jurisdiction 
or  trial  under  this  Article  or  otherwise.^    XXXVIII,  557. 

SIXTY-FIFTH  ARTICLE. 

''  Officers  charged  witli  crime  shall  he  arrested  and  confined  in  their  har- 
racks,  quarters,  or  tents,  and  deprived  of  their  swords  hy  the  commanding 
officer.  And  any  officer  who  leaves  his  confinement  hefore  he  is  set  at  lih- 
erty  by  his  commanding  officer  shall  be  disnussed  from  the  service." 

1.  The  term  "  crime"  is  here  employed  in  a  general  sense, 
referring  to  offences  of  a  military  character,  as  well  as  to 
those  of  a  civil  character  which  are  cognizable  by  court-mar- 
tial.* An  offence  in  violation  of  this  Article  is  onlj^  committed 
when  an  officer,  confined  in  ^^  close  arrest"  to  his  quarters, 
leaves  the  same  without  authority.  VII,  141;  XXV,  518. 
A  breach  of  a  mere  formal  arrest,  or  of  imj  arrest  not  accon- 
l^anied  by  confinement  to  quarters,  would  be  an  offence  not 
within  this  Article,  but  under  Art.  62.     V,  122  ;  XI,  127. 

2.  Simx)ly  disobeying  an  order  to  proceed  and  report  in 
arrest  to  a  certain  commander,  held  not  an  offence  charge- 
able under  this  Article.     XXXI,  006. 

^  See  the  confirmatory  opinion  in  this  case  of  the  Attorney 
General  of  May  15,  1878,  i^ublished  in  G.  O.  25,  Hdqrs.  of 
Army,  1878.  ^ 

^  See  opinion,  to  a  similar  effect,  of  the  Attorney  General 
of  June  15,  1878,  (XVI  Opins.  — .) 

^  See,  to  the  same  effect,  the  or^inion  of  the  Attorney  Gen- 
eral of  May  15,  1878,  referred  to  in  note  1. 

*  Compare  AVolton  v.  Gavin,  16  Ad.  &  El.  Q(S^  68  ;  Simmons, 
§  360. 


ARTICLES   OF   VTAU.  51 

3.  Where  an  officer  in  close  arrest  was  permitted  by  his 
commanding  officer  to  leave  temporarily  his  confinement,  held 
that  his  delaying  his  return,  for  a  brief  period  beyond  the 
time  fixed  therefor,  did  not  properly  constitute  an  offence 
under  this  Article.     XXX,  502. 

4.  Though  any  unauthorized  leaving  of  his  confinement  by 
an  officer  in  close  arrest  is,  strictly,  a  violation  of  the  xVrticle, 
it  would  seem,  in  view  of  the  severe  mandatory  punishment 
prescribed,  that  an  officer  should  not  in  general  be  brought 
to  trial  under  the  same  unless  his  act  was  of  a  reckless  or 
deliberately  insubordinate  character.  Y,  122,  020  j  XXVII, 
136. 

5.  It  is  no  defence  to  a  charge  of  breach  of  arrest  in  viola- 
tion of  this  Article,  that  the  accused  is  innocent  of  the  offence 
for  which  he  was  arrested.  ^  It  is*  a  defence,  however,  that, 
subsequently  to  the  original  confinement,  the  accused  has 
been  put  on  duty  or  allowed  to  go  on  duty,  provided  that, 
before  the  breach  assigned,  he  has  not  been  duly  re-arrested 
and  re-confined.^     XXX,  250. 

6.  The  requirement  of  this  Article,  that  an  offender  "shall 
be  dismissed j^^  is  held  to  be  exclusive  of  any  other  punishment. 
A  sentence  of  dismissal,  with  forfeiture  of  pay,  is  unauthor- 
ized and  inoperative  as  to  the  forfeiture,  and  as  to  this,  should 
be  disapproved.  YIII,  290.  [See  Sixty-First  Article 
§19.] 

SIXTY-SIXTH  AETICLE. 

"  Soldiers  charged  with  crimes  shall  be  confined  until  tried  hy  court- 
martial,  or  released  by  proper  authority." 

Soldiers  held  in  military  arrest,  while  they  may  be  sub- 
jected to  such  restraint  as  may  be  necessary  to  prevent  their 
escaping  or  committing  violence,  cannot  legally  be  subjected 
to  nuy  jnmishment:  the  imposition  of  punishment  upon  soldiers 
while  thus  detained  has  been  on  several  occasions  emphat- 
ically denounced  by  department  commanders.^    XXXI,  27. 

'  Hough,  (Practice,)  494. 

-Hough,  (Precedents,)  19. 

^See,  for  example,  the  remarks  of  such  commanders  in 
G.  O.  23,  Dept.  of  the  East,  1803 ;  do.  20,  Dept.  of  California, 
1800;  do.  23,  Dept.  of  the  Lakes,  1870;  do.  100,  Dept.  of 
Dakota,  1871.  And  compare  remarks  of  Justice  Story  in 
Steere  v.  Field,  2  ]Mason,  510. 


52  ARTICLES   OF   WAR. 

SEVENTIETH  AETICLE. 

''No  officer  or  soldier  put  ill  arrest  shall  be  continued  in  confinement 
more  than  eight  days,  or  until  such  time  as  a  court-martial  can  be  assem- 
bled." 

Detaining  soldiers  in  arrest  for  long  and  unreasonable 
periods,  when  it  is  practicable  to  bring  them  to  trial,  is  arbi- 
trary and  oppressive,  and  in  contravention  both  of  the  letter 
and  spirit  of  this  Article.  Whether  the  delay  in  any  case  is 
to  be  regarded  as  so  far  unreasonable  as  proj)erly  to  subject 
the  commander  responsible  therefor  to  military  charges  or  a 
civil  action,  must  depend  ui^on  the  circumstances  of  the  situ- 
ation and  the  exigencies  of  the  service  at  the  time.^  XXX, 
405  5  XXXI,  597. 

SEYEXTY-FIRST  AKTICLE. 

''When  an  officer  is  put  in  arrest  for  the  purpose  of  trial,  except  at 
remote  military  posts  or  stations,  the  officer  by  whose  order  he  is  arrested 
shall  see  that  a  copy  of  the  charges  on  which  he  is  to  be  tried  is  served 
upon  him  within  eight  aays  after  his  arrest,  and  that  he  is  brought  to 
trial  within  ten  days  thereafter,  unless  the  necessities  of  the  service  pre- 
vent such  trial ;  and  then  lie  shall  be  brought  to  trial  within  thirty  days 
after  the  expiration  of  said  ten  days.  If  a  copy  of  the  charges  be  not 
served,  or  the  arrested  officer  be  not  brought  to  trial,  as  herein  required, 
the  arrest  shall  cease.  But  officers  released  from  arrest,  under  the  pro- 
visions of  this  article,  may  be  tried,  whenever  the  exigencies  of  the 
service  shall  permit,  within  twelve  months  after  such  release  from  arrest." 

1.  Though  an  officer,  in  whose  case  the  provisions  of  this 
Article  in  regard  to  service  of  charges  and  trial  have  not 
been  complied  with,  is  enfitJed  to  be  released  trom  arrest,  he 
is  not  authorized  to  release  himself  therefrom.  If  he  be  not 
released  in  accordance  with  the  Article,  he  should  apply  for 
his  discharge  from  arrest,  through  the  proj^er  channels,  to  the 
authority  by  whose  order  the  arrest  was  im^Dosed,  or  other 
proper  superior.  VII,  162  ;  VIII,  61  j  IX,  467,  550  ;  XVIII, 
161 ;  XXIV,  387,  580. 

2.  The  term  ^'  within  ten  days  thereafter,'^  Jield  to  mean 
after  Ms  arrest.     X,  572. 

3.  Reld  a  sufficient  compliance  with  the  requirement  as  to 
the  service  of  charges,  to  have  served  a  true  coi>y  of  the 
existing  charges  and  specifications,  though  the  list  of  wit- 
nesses api^ended  to  the  original  charges  was  omitted,  (see 

'  Compare  Blake's  Case,  2  Maule  &  Sel.  428 ;  Bailey  v. 
Warden,  4  Id.,  400. 


ARTICLES  OF  WAR.  53 

Charge  §  29 ; )  and  though  the  charges  themselves  were  not 
in  sufficient  legal  form,  and  were  intended  to  be  amended 
and  re-drawn.     XXV,  350. 

4.  The  fact  that  cases  of  officers  put  in  arrest  ^'  at  remote 
military  posts  or  stations"  are  excepted  from  the  application 
of  the  Article,  does  not  authorize  an  abuse  of  the  i^ower  of 
arrest  in  these  cases.  And  where,  in  such  a  case,  an  arrest, 
considering  the  facilities  of  communication  with  the  depart- 
ment lieadquarters  and  other  circumstances,  was  in  fact 
unreasonably  protracted  without  trial,  held  that  the  officer 
was  entitled  to  be  released  from  arrest  upon  a  i^roper  appli- 
cation submitted  for  the  purpose.     XXXII,  195,  484:. 

SEVENTY-SECOND  AETICLE. 

*'Any  general  ofificer  eommauding  the  army  of  the  United  States,  a  sep- 
arate army,  or  a  separate  department,  shall  he  eompetent  to  appoint  a  gen- 
eral court-martial,  either  in  time  of  peace  or  in  time  of  war.  But  when  any 
such  commander  is  the  accuser  or  prosecutor  of  any  officer  under  his  com- 
mand, the  court  shall  be  appointed  by  the  President,  and  its  proceedings 
and  sentence  shall  be  sent  directly  to  the  Secretary  of  War,  by  whom  they 
shall  be  laid  before  the  President,  for  his  approval  or  orders  in  the  case." 

1.  This  Article  specifies  by  what  military  officers  a  general 
court-martial  may  be  constituted.  The  President  of  the 
United  States  has  of  course  the  power  to  order  such  a  court, 
as  the  constitutional  Commander-in-chief  of  the  Army,  irre- 
spective of  this  Article  or  other  statute.  XXXIII,  603.  [See 
President,  I.J 

2.  This  Article,  in  empowering  certain  commanders  to  con- 
stitute the  superior  courts-martial,  makes  them  the  judges  in 
general  of  the  exiiediency  of  ordering  such  courts  in  x)articu- 
lar  instances.  Except  where  specially  authorized  to  do  so  by 
law  or  regulation,  (as  in  the  case  provided  for  by  par.  1027, 
Army  Eegidations,)  an  officer  or  soldier  can  not  demand  a 
court  martial  in  his  own  case.     XXXIV,  413. 

3.  Where  a  commander  empowered  by  this  Article  to  con- 
vene a  general  court  martial,  declines,  in  the  exercise  of  his 
discretion,  to  approve  charges  submitted  to  him  by  an  inferior 
and  to  order  a  court  thereon,  liis  decision  shoidd  in  general  be 
regarded  as  final.    XXXII,  323. 

4.  A  colonel  commandhig  a  department  is  not  authorized, 
as  such,  to  convene  a  general  court :  otherwise  of  a  colonel 
assigned  to  the  command  of  a  department  according  to  his 


54  ARTICLES   OF  WAR. 

brevet  rank  of  brigadier  or  major  general.    XXXVIII,  156  j 
XLI,  496. 

5.  The  authority  to  order  a  court  under  this  Article  is  an 
attribute  of  command.  Thus  a  dei)artment  commander,  de- 
taclied  and  absent  from  his  command  for  anj^  considerable 
period  by  reason  of  having  received  a  leave  of  absence, 
(whether  of  a  formal  or  informal  character,)  or  having  been 
placed  upon  a  distinct  and  separate  duty,  (as  that  of  a  mem- 
ber of  a  court  or  board  convened  outside  his  department,  for 
example,)  is  held  to  be  incompetent  during  such  absence  to 
order  a  general  court  martial  as  department  commander,  even 
though  no  other  officer  has  been  assigned  or  has  succeeded  to 
the  command  of  the  department.^  XL,  78  j  XLIY,  63.  [See 
One  hundred  and  fourth  Article,  §  4.] 

Xor  can  a  department  commander  thus  absent,  exercise 
such  authority  throtigh  a  staff  officer  or  other  subordinate,  or 
delegate  the  same  to  a  subordinate  to  be  exercised  by  him. 
XLIII,  264,  279.  Xor,  where  a  general  court  martial  duly 
convened  by  a  department  commander,  has,  at  a  time  when 
the  commander  is  thus  absent  from  his  command,  been  re- 
duced, by  an  incident  of  the  service,  below  five  members,  can 
another  member  legall^^  be  detailed  uj^on  the  court,  by  the 
assistant  adjutant  general,  or  other  subordinate  officer  re- 
maining in  charge  of  the  headquarters;  since  such  a  detail 
would  be  an  exercise  of  a  portion  of  the  authority  vested  by 
this  Article  in  the  commander,  and  which  can  in  no  part  be 
delegated.  XLII,  577;  XLIII,  332.  [See  Seventy-fifth 
Article  §  7.] 

6.  To  fix  upon  the  commander  who  convened  the  court  the 
character  of  "accuser  or  prosecutor,"  it  is  not  essential  that 
he  should  have  signed  the  charges  on  which  the  accused  was 
tried.    YIII,  38. 

7.  Where  the  commander  who  convened  the  court  had  also 
to  do  with  the  preparing  or  preferring  of  the  charges,  the 
question  whether  he  is  to  be  regarded  as  having  been  the 
"  accuser  or  i^rosecutor  "  of  the  accused  in  the  sense  of  this 
Article  is  mainly  to  be  determined  by  his  animus  in  the  mat- 
ter. If,  when  the  facts  of  the  alleged  offence  are  communi- 
cated to  him,  he  determines  that  the  same  constitute  a  suffi- 
cient and  proper  ground  for  a  trial,  and  thereupon  directs  a 
suitable  officer,  as  an  officer  of  his  staff*,  or  the  commanding 

'  See  G.  0.  M.  O.  9,  Dept.  of  Columbia,  1880. 


AUTICLES  OF  WAR.  55 

officer  of  the  regiment  or  company  of  the  accused,  to  prepare 
or  i)refer  the  charges,  he  acts  simply  in  the  due  performance 
of  an  official  duty  and  not  as  ''  accuser  or  i)rosecutor."  ^  Kor 
is  his  action  any  the  less  official,  if,  in  the  desire  to  have  the 
proceedings  regular  and  effectual,  he  himself  directs  as  to  the 
form  of  the  charges,  or,  after  the  same  are  prepared,  revises 
them  so  that  they  shall  sufficiently  set  forth  the  alleged  of- 
fences. Much  less  is  he  to  be  deemed  an  ^^  accuser  or  prose- 
cutor," where  he  causes  the  charges  to  be  preferred,  and  pro- 
ceeds to  convene  the  court,  by  the  direction  of  the  Secretary 
of  War  or  a  competent  military  sui)erior. 

On  the  other  hand,  where  he  himself  initiateH  the  charge, 
out  of  a  hostile  animus  toward  the  accused  or  a  personal  in- 
terest adverse  to  him,  or  from  a  similar  motive  adopts  and 
makes  his  own  a  charge  initiated  by  another,  he  is  to  be 
deemed  an  ^^ accuser  or  prosecutor"  within  the  Article.  Xor 
is  he  the  less  so  where,  though  he  has  no  personal  feeling  or 
interest  in  the  case,  he  has  become  possessed  with  the  con- 
viction that  the  accused  is  guilty  and  deserves  punishment 
and,  in  this  conviction,  initiates  or  assumes  as  his  own  the 
charge  or  the  prosecution.  For  in  this  case,  equally  as  in 
the  former, he  is  unfit  to  be  m  jud(je\\\)on  the  merits  of  the  case: 
in  the  one  instance  he  is  too  much  prejudiced  to  be  qualified 
to  do  justice;  in  the  other  he  has  condemned  the  accused  be- 
forehand. VII,  5;  XIV,  285;  XXX,  170;  XXXII,  78,  278; 
XXXIV,  104;  XXXVII,  189;  XLII,  626. 

8.  The  objection,  that  the  convening  commander  was  the 
"accuser"  or  ''prosecutor"  of  the  accused,  being  one  going 
to  the  legal  constitution  of  the  court,  may  be  raised  before 
the  court  at  any  stage  of  its  proceedings.  [Or  it  may  be 
taken  to  the  reviewing  officer  with  a  view  to  his  disapproving 
the  proceedings,  or  may  be  made  to  the  President,  after  the 
ai)proval  and  execution  of  the  sentence,  with  a  view  to  having 

^  Comi^are  late  opinion — to  a  somewhat  similar  effect — of  the 
Attorney  General  of  August  1, 1878,  (XVI  Opins.  — ,)  in  which 
it  is  also  held  that  where  the  record  of  the  trial  fails  to  indi- 
cate that  the  convening  officer  was  the  "  accuser  or  prose- 
cutor" of  the  accused,  the  latter,  in  applying  to  the  Secretary 
of  War  to  have  the  proceedings  pronounced  invahd  on  this 
ground,  may  establish  the  fact  by  the  production  of  affidavits 
setting  forth  the  circumstances  of  the  case  and  the  action  of 
the  commander. 


56  ARTICLES   OF   WAR. 

the  same  declared  invalid  or  to  llie  obtaining  of  other  appro- 
priate relief.]  Eegnlarly,  nowever,  the  objection,  if  known 
or  believed  to  exist,  should  be  taken  at  or  before  the  arraign- 
ment. I,  430 5  VIII,  38.  If  the  objection  is  not  admitted  by 
the  i^rosecution  to  exist,  the  accused  is  entitled  to  prove  it 
like  any  other  issue.     I,  430. 

9.  The  x^ro vision  of  this  Article,  (and  of  Art.  73,)  that,  when 
the  convening  commander  is  ''accuser  or  prosecutor,"  the 
court  shall  be  convened  by  the  President  or  ''next  higher 
commander,"  being  expressly  restricted  to  general  courts,  has 
of  course  no  application  to  regimental  or  garrison  courts. 
The  same  principle,  however,  will  properly  be  applied  to  pro- 
ceedings before  these  courts,  if  it  can  be  done  without  serious 
embarrassment  to  the  service.  XXXIV,  353,  598;  XXXY, 
138  J  XLII,  231. 

SEYEXTY-THIED  AETICLE. 

''In  time  of  war  the  commaDtler  of  a  division,  or  of  a  separate  brigade 
of  troops,  shall  be  competent  to  appoint  a  general  court-martial.  But 
when  such  commander  is  the  accuser  or  prosecutor  of  any  person  under 
his  command,  the  court  shall  be  appointed  by  the  next  higher  commander." 

1.  According  to  the  general  definition  given  in  the  Act  of 
March  3,  1799,  (Sec.  1114,  Eev.  Sts.,)  a  division  is  an  organ- 
ized command  consisting  of  at  least  two  brigades,  and  a  bri- 
gade an  organized  command  consisting  of  at  least  two  regi- 
ments of  infantry  or  cavalry.  A  brigade,  however,  to  be  a 
'''separate  brigade''^  in  the  sense  of  this  Article,  must  not  exist 
as  a  component  part  of  a  division :  to  authorize  its  commander 
to  convene  a  general  court  martial  it  must  be  detached  from 
or  disconnected  with  any  division  and  be  oi^erating  as  a  dis- 
tinct command.  Thus,  where  it  appeared  from  the  record  of 
a  trial  that  the  court  was  convened  by  a  colonel  commanding 
the  "2d  Brigade,  3d  Division,  14th  Army  Corps,"  held  that  it 
was  quite  clear  that  such  colonel  did  not  command  a  ''- sepa- 
rate brigade,"  and  was  therefore  not  authorized  to  order  a 
general  court  martial.     Ill,  546. 

2.  Held,  prior  to  Aug.  31,  1804,  (the  date  of  the  General 
Order  specified  in  the  next  Paragraph,)  that  where  a  com- 
mand, not  attached  to  a  division  but  occupying  a  separate 
l)ost  or  district,  or  operating  separately  in  the  field,  was  made 
up  of  regiments  or  parts  of  regiments  sufiicient  to  compose  a 
brigade,  and  such  as  were  commonly  or  might  properly  be 


ARTICLES   OF   WAR.  57 

organized  into  a  brigade  command,  the  same  might  in  general 
be  viewed  as  constituting  a  "separate  brigade"  in  the  sense 
of  this  Article,  i.  e.  so  far  as  to  empower  its  commander  to 
convene  a  general  court  martial.  VI,  250;  X,  52, 107;  XIII, 
29.  But  Avliere  a  certain  command  consisted  of  but  one  reg- 
iment of  infantry  with  three  batteries  of  artillery,  held  that 
it  could  scarcely  be  regarded  as  a  separate  brigade  within 
the  meaning  of  the  statute.    X,  107. 

3.  On  Aug.  31, 18G4,  was  issued  from  the  War  DepartrnxCnt 
a  General  Order — Xo.  251  of  that  year — whicli  directed  as 
follows:  "Where  a  x)OSt  or  district  command  is  composed  of 
mixed  troops,  equivalent  to  a  brigade,  the  commanding  officer 
of  the  Department  or  Army  will  designate  it  in  orders  as  'a 
sei)arate  brigade,'  and  a  copy  of  such  order  will  accompany 
the  proceedings  of  any  General  Court  Martial  convened  by 
such  brigade  commander.  Without  such  authority,  com- 
manders of  i)Osts  and  districts  having  no  brigade  organiza- 
tion will  not  convene  General  Courts  Martial."  Under  this 
Order,  which  was  applied  mainly  to  the  commands  designated 
in  the  late  war  as  "Districts,"  it  was  held  by  the  Judge  Ad- 
vocate-General as  follows : — That  the  fact  that  a  district  com- 
mand was  composed  not  of  regiments  but  of  detachments 
merely,  (which,  however,  in  the  number  of  the  troops,  were 
equal  to  or  exceeded  two  regiments,)  did  not  ])reclude  its 
being  designated  as  a  "  separate  brigade,"  and  that  when  so 
designated,  its  commander  had  the  same  authority  to  convene 
general  courts  martial  as  he  would  have  if  the  command  had 
the  regular  statutory  brigade  organization.  XI,  110 :  That 
though  a  district  command  embraced  a  force  considerably 
greater  than  that  of  a  brigade  as  commonly  constituted,  yet 
if  not  designated  by  the  proper  authority  as  a  "separate 
brigade,"  its  commander  would  be  ^^thout  authority  to  con- 
vene general  courts  martial,  unless  indeed  his  command  con- 
stituted a  separate  "army"  in  the  sense  of  the  G5th  (now  72d) 
Article.  XIII,  340:  That  it  was  not  absolutely  necessary, 
to  give  validity  to  the  proceedings  or  sentence  of  a  general 
court  martial  convened  by  the  commander  of  a  separate  bri- 
gade, that  the  command  should  be  described  as  a  Separate 
Brigade  in  the  caption  or  sui)erscription  of  the  order  conven- 
ing the  court  and  prefixed  to  the  record,  or  even  that  a  copy 
of  the  Order  designating  the  command  as  a  separate  brigade 


58  ARTICLES  OF  WAR. 

should  accompany  the  proceedings.  As  to  the  hitter  feature, 
the  Order  of  1864  is  viewed  as  directory  merely.  And  though 
not  to  accompany  the  record  with  a  copy  of  the  order  thus 
constituting  the  command  would  be  a  serious  irregularity,  as 
would  be  also — though  a  less  serious  one — the  omission  of  the 
proper  formal  description  of  the  command  from  the  convening 
order,  yet  if  the  command  had  actually  been  duly  designated, 
and  m  fact  was,  a  separate  brigade,  and  this  fact  existed  of 
record  and  could  be  verified  from  the  ofQcial  records  of  the 
department  or  army,  the  omission  of  either  of  these  i^articu- 
lars,  though  a  culpable  and  embarrassing  neglect  on  the  part 
of  the  court  or  judge  advocate,  would  not,  jjer  se^  invalidate 
the  proceedings  or  sentence.     XIX,  280,  G81. 

4.  Held^  (January,  18GG,)  that  until  the  status  helli  had  been 
formally  declared  to  be  terminated  by  the  President  or  Con- 
gress, such  status  must  be  held  to  be  subsisting ;  ^  and  that, 
till  such  declaration,  the  authority  vested  by  the  Act  of  Dec. 
24,  18G1,  ch.  3,  (now  Art.  73,)  in  commanders  of  divisions  and 
separate  brigades  might  lawfully  continue  to  be  exercised. 
XXI,  136. 

SEVENTY-FOUETH  ARTICLE. 

"  Officers  who  may  appoint  a  court-martial  sliall  be  competent  to  appoint 
a  judge-advocate  for  tlie  same." 

See  judge  ADVOCATE,  §  1. 

SEYEXTY-EIFTH  AETICLE. 

"  General  courts-martial  may  consist  of  any  number  of  officers  from  five 
to  thirteen,  inclusive ;  but  they  shall  not  consist  of  less  than  thirteen  when 
that  number  can  be  convened,  without  manifest  injury  to  the  service." 

1.  Under  this  Article  a^ll  officers  of  the  active  list  of  the  army 
are  eligible  to  be  detailed  as  members  of  general  courts -mar- 
tial; medical  officers  and  chaplains  equally  with  any  others. 
XXXVI,  451 J  XLI,  306.  [But  see  Medical  Officer  §  2.] 
Eetired  officers,  in  view  of  Sees.  1259, 1260,  Eev.  Sts.,  cannot 
legally  be  assigned  to  court  martial  duty. 

2.  But  only  officers  can  be  so  detailed :  courts-martial  com- 
posed in  whole  or  in  i^art  of  enlisted  men  are  unknown  to  our 

^  As  to  the  date,  (or  dates,)  of  the  legal  termination  of  the 
war,  and  so  of  the  operation,  for  the  time,  of  this  Article,  see 
War. 


ARTICLES  OF  WAR.  59 

law.  XLII,  311.  So  an  "acting  assistant  surgeon,"  being  a 
civilian,  is  not  qualified  to  sit  on  a  court  martial.  XXII, 
542.  Though  any  officer  may  legally  be  detailed,  it  is  desira- 
ble that  no  officer  should  be  selected  who,  from  having  pre- 
ferred the  charges  or  other  known  reason,  may  be  i)resumed 
to  be  biased  or  interested  in  the  case.    XXXIX,  240. 

3.  Where,  in  the  course  of  a  trial,  the  number  of  the  mem- 
bers of  a  general  court  martial  is  reduced  b^^  reason  of  ab- 
sence, challenge,  or  the  relieving  of  members,  the  court  may 
legally  proceed  with  its  business  so  long  as  five  members — 
the  minimum  quorum — remain :  Otherwise,  where  the  num- 
ber is  thus  reduced  below  five.     XVI,  549. 

4.  While  a  number  of  members  less  than  five  cannot  be 
organized  as  a  court  or  i)roceed  with  a  trial,  they  may  per- 
form such  acts  as  are  i:)reliminary  to  the  organization  and 
action  of  the  court.  Less  than  five  members  may  adjourn 
from  day  to  day,  and  where  five  are  present  and  one  of  them 
is  challenged,  the  remaining  four  may  determine  upon  the 
sufficiency  of  the  objection.    Y,  310. 

5.  A  court  reduced  to  four  members  and  thereupon  adjourn- 
ing for  an  indefinite  period,  does  not  dissolve  itself.  In  ad- 
journing it  should  report  the  facts  to  the  convening  authority 
and  await  his  orders.  He  may  at  any  time  complete  it  by  the 
addition  of  a  new  member  or  members,  and  order  it  to  reas- 
semble for  business.     V,  319  ;  XXXIX,  328. 

G.  Where  a  court,  though  reduced  by  the  absence  of  mem- 
bers, operation  of  challenges,  &c.,  to  below  five  members,  yet 
proceeds  with  and  concludes  the  trial,  its  further  proceedings, 
including  its  finding  and  sentence,  (if  any.)  are  unauthorized 
and  inoperative.     II,  448  ;  VII,  440. 

7.  An  assistant  adjutant  general,  or  other  staff  officer  of  a 
department  commander,  is  not  empowered,  of  his  own  author- 
ity, in  the  absence  of  the  commander,  to  relieve  im  officer  (h\\j 
detailed  ui)on  a  court-martial  by  such  conmiander,  any  more 
than  he  is  so  empowered  to  detail  a  new  officer  as  a  member 
of  such  a  court.    XLIII,  332.     [See  Seventy- Seco^^d  Aeti- 

CLE  §  5.] 

8.  It  is  not  essential  to  the  validity  of  the  proceedings  that 
the  order  convening  a  general  court-martial  of  less  than  thir- 
teen members  should  state  that  '^  no  other  officers,"  (or  '•  no 
greater  number,")  "than  those  named  can  be  assembled 


60  ARTICLES  OF  WAB. 

without  maoifest  inj  ury  to  the  service."  Par.  883  of  the  Army 
Regulations  is  merely"  directory  as  to  the  form  of  the  order. 
Attorney  General  Wirt,  (I  Opinions,  290,)  did  not  hold  such 
a  statement  to  be  essential,  but  simply  exi)ressed  the  opinion 
that  the  President,  before  confirming  a  certain  death  sentence, 
adjudged  by  a  court  of  less  than  thirteen  members,  would 
properly  satisfy  himself  that  a  court  of  the  full  number  could 
not  have  been  convened  without  prejudice  to  the  service.  It 
was  held  at  an  early  i)eriod  by  the  U.  S.  Supreme  Court  that 
it  was  for  the  convening  authority  to  determine  as  to  what 
number  of  officers  could  be  detailed  without  manifest  injury 
to  the  service,  and  that  his  decision  on  the  subject  would  be 
conclusive.^     XXXYII,  528. 

SEVENTY-SEVENTH  ARTICLE. 

"OiScers  of  tlie  Eegular  Army  shall  not  be  comx^etent  to  sit  on  courts- 
martial  to  try  tlie  officers  or  soldiers  of  other  forces,  except  as  provided 
in  Article  78." 

Although  officers  and  soldiers  of  volunteers,  not  being 
militia,  are  as  much  a  x)art  of  the  Army  of  the  United  States 
as  are  regular  officers,  (see  Volunteers  §  1,)  yet,  in  view  of 
the  terms  of  this  Article,  an  officer  of  the  regular  army,  so- 
called,  would  not  be  eligible  for  detail  as  a  member  of  a  court- 
martial  convened  for  the  trial  of  volunteer  officers  or  soldiers, 
nor,  when  duly  detailed  as  a  member  of  a  court-martial,  would 
he  be  competent  to  take  part  in  the  trial  of  a  volunteer  by 
such  court.    XIX,  670. 

SEVEXTY-XIXTH  ARTICLE. 

"  Officers  shall  he  tried  only  hy  general  courts-martial ;  and  no  officer 
shall,  when  it  can  be  avoided,  be  tried  by  officers  inferior  to  him  in 
rank." 

1.  Whether  the  trial  of  an  officer  by  officers  of  an  inferior 
rank  can  be  avoided  or  not,  is  a  question  not  for  the  accused 
or  the  court,  but  for  the  officer  convening  the  court ;  and  his 
decision,  (as  indicated  by  the  detail  itself  as  made  in  the  con- 
vening order,)  upon  this  i^oint,  as  ux)on  that  of  the  number  of 
members  to  be  detailed,  is  conclusive.  [See  Seventy-fifth 
Article  §  8.]  An  officer,  therefore,  cannot  successfully  chal- 
lenge a  member  because,  merely ,  of  being  of  a  rank  inferior  to 
his  own.    Ill,  82.    [See  Eighty-eighth  Article  §  7.] 

^Martin  v.  Mott,  12  Wheaton,  34-37.  (1827.) 


ARTICLES  OF  WAR.  61 

2.  The  statement  sometimes  added  in  orders  convening* 
courts-martial  to  the  effect  that  '•'•  no  officers  other  than  those 
named  can  be  detailed  without  injury  to  the  ser\'ice/'  is  as 
superfluous  and  unnecessary  for  the  purpose  of  excusing  the 
detailing  of  officers  junior  to  the  accused,  as  it  is  for  account- 
ing for  the  fact  that  less  than  the  maxinmm  number  have 
been  selected  for  the  court.  XI,  208.  [See  Seve]N'ty-fifth 
Article  §  8.] 

EIGHTIETH  AETIOLE. 

"  In  time  of  war  a  lield-officer  may  be  detailed  in  every  regiment,  to 
try  soldiers  thereof  for  offences  not  capital ;  and  no  soldier,  serving  with 
his  regiment,  shall  be  tried  by  a  regimental  or  garrison  court-martial 
when  a  field-officer  of  his  regiment  may  be  so  detailed." 

1.  While  the  original  statute,  (Act  of  July  17,  18G2,  c.  201, 
s.  7,)  i^roviding  for  field  officers'  courts  was  open  to  the  con- 
struction of  authorizing  these  courts  at  all  times,  whether  in 
war  or  in  peace,  and  was  quite  generally  regarded  as  so 
authorizing  the  same,  the  law  as  re-enacted  in  the  i)resent 
Article,  in  the  Code  of  1874,  expressly  limits  the  detailing  of 
field  officers  as  courts  to  ^'  time  of  tvar.''^  The  Article  substi- 
tutes the  field  officer's  court  for  the  regimental  or  garrison 
court  in  time  of  war,  in  all  cases  arising  in  a  regiment,  for 
the  trial  of  which  it  is  practicable  to  detail  a  field  officer  of  the 
regiment.     II,  58,  ()S',  Y,  523;  XXXY,  G40  ;  XXXVI,  410. 

Held,  as  to  one  hundred  and  twenty-four  cases,  forwarded 
together  to  the  Bureau  of  Military  Justice,  and  which  had 
been  tried  by  field  officers'  courts  convened  in  time  of  peace, 
and  after  the  present  code  of  Articles  had  been  enacted  by 
Congress, — that  the  proceedings  in  all  the  cases  were  unau- 
thorized and  inoperative.  XXXVI,  430.  But,  adrised  that 
the  soldiers  tried  and  sentenced  by  these  courts,  (or  by  any 
other  field  officers'  courts  ordered  in  time  of  peace,)  remained 
of  course  triable  by  general,  or  by  regimental  or  garrison, 
courts  in  the  usual  manner.  XXXVI,  630 ;  XXXVII,  270. 
[See  One  hundred  and  second  Article  §  3.] 

2.  The  field  officer  will  properly  be  detailed  by  the  colonel 
or  commanding  officer  of  the  regiment,  wherever  there  is  a 
field  officer,  (other  than  such  commander,)  on  duty  with  it. 
In  i)ractice  the  major  has  generally  been  so  detailed.  Wiiere 
there  is  present  with  the  regiment  but  a  single  field  officer,  who 
is  also  the  officer  in  command,  such  officer  cannot  properly 


62  ARTICLES   OF  WAK. 

detail  himself  as  a  court ;  the  detail  in  such  case  should  there- 
fore be  made  by  the  next  higher  commander,  as  the  brigade, 
division,  or  post  commander,  in  whose  command  the  regiment 
is  iijcluded.     I,  3G8,  400 ;  Y,  523  -,  VIII,  413  5  X,  470. 

The  following  commanders  licld  not  authorized  to  convene 
a  field  ofiicer's  court :  A  i)ost  commander  whose  command 
does  not  include  a  regiment.  XXI,  78 :  A  commanding 
ofiicer  of  a  battalion.  XIII,  480 :  A  commander  of  a  draft 
rendezvous.    XIY,  48. 

3.  Only  a  field  ofiicer  of  a  regiment  can  be  detailed.  XI, 
497 ;  XVII,  18,  50.  A  captain  assigned  to  duty  with  his 
regiment  according  to  his  brevet  rank  of  major,  is  a  field 
officer  for  the  time,  and  may  be  detailed.  XII,  5G0  A  post 
commander  cannot  be  detailed  as  such.  XXIII,  546.  An 
ordnance  ofiicer,  (of  field  officer's  rank,)  commanding  a  detach- 
ment at  an  arsenal,  cannot  be  detailed.     VIII,  413. 

4.  Where  a  regiment,  in  time  of  war,  contains  no  field  officer 
eligible  for  the  detail,  a  regimental  or  garrison  court  must  be 
resorted  to.     I,  368  5  II,  GS-,  III,  81,  182,  644  j  XIII,  14. 

5.  The  field  officer  has  jurisdiction  only  to  try  soldiers  of 
his  regiment.  Ill,  613  5  YIII,  413;  XXIX,  180.  His  juris- 
diction is  co-extensive  with  the  regiment,  and  attaches  gen- 
erally, although  the  regiment  for  puri^oses  of  service  is  sepa- 
rated into  portions,  provided  all  the  portions  are  under  the 
command  of  the  convening  ofiicer.  XXYI,  235.  But  it  does 
not  extend  to  a  comiiany  or  portion  of  the  regiment  on  detached 
service  in  a  separate  and  distinct  command.  XXII,  608  5 
XXIX,  202. 

6.  A  field  officer  detailed  as  a  court  is  not  required  to  be 
sworn  as  such.     I,  371 ;  Y,  395,  405. 

7.  The  whole  duty  of  the  court  is,  in  practice,  performed 
by  the  field  ofiicer.  Xo  judge  advocate  or  recorder  is  required 
to  be,  or  has  been,  employed.  The  field  officer  i)repares  his 
own  record.     I,  371 ;  XI,  210. 

8.  The  proceedings  of  the  field  officer  are  intended  to  be 
summary  in  their  character.  He  will,  however,  properly 
make  a  brief  succinct  record  of  the  same,  setting  forth  the 
order  of  detail,  the  names,  &:c.,  of  the  offenders,  the  oft'ences 
with  which  they  were  charged,  with  the  time  and  place  of 
commission,  thei)leas,  the  findings  and  the  sentences  imposed 
by  him.     The  nature  and  circumstauces  of  the  offence  or 


ARTICLES  OF  WAR.  63 

offences  in  each  case  should  be  stated  with  sufficient  particu- 
larity to  enable  the  reviewing  officer  to  determine  whether 
the  court  had  jurisdiction.  It  shoukl  api)ear  of  course  from 
the  record  that  the  accused  in  each  case  was  present  before 
the  court,  and  that  the  charges  were  investigated :  in  prac- 
tice, liowever,  the  testimony  luis  not  in  general  been  recited. 
I,  371,  400,  4865  III,  280;  Vl,  584;  VIII,  249,  414;  IX,  29; 
XXIV,  309. 

9.  The  accused  is  not  entitled  to  challenge  the  field  officer, 
(see  Eighty-Eighth  Article  §  1,)  and  it  is  not  essential 
that  the  record  should  show  that  he  was  afforded  an  oppor- 
tunity for  challenge.  Any  material  objection,  however,  of 
the  nature  of  a  challenge,  tluit  may  be  offered  by  the  accused 
to  the  officer  will  properly  be  set  forth  in  the  record  as  a  fact 
for  thg  consideration,  (in  connection  with  the  sentence,)  of 
the  reviewing  authority,  by  whom,  as  indicaf^d  in  Art.  110, 
the  proceedings  are  to  be  approved.     XLI,  210. 

EIGHTY-FIRST  ARTICLE. 

''Every  officer  commanding  a  regiment  or  corps  shall,  subject  to  tho 
provisions  of  article  eight}',  be  competent  to  appoint,  for  his  own  regi- 
ment or  corps,  courts-martial,  consisting  of  three  oihcers,  to  try  offenses 
not  capital." 

1.  Held  that  the  Chief  of  Engineers  was  authorized  to  order 
a  court  under  this  Article  for  the  trial  of  soldiers  of  the 
engineer  battalion;  the  same,  in  connection  with  the  engineer 
officers  cf  the  army,  being  deemed,  in  view  of  sees.  1094, 
1151, 1154,  &c.,  of  the  Revised  Statutes,  to  constitute  a  "corps" 
in  the  sense  of  the  Article.  XXII,  497.  So  heU  that  the 
Chief  of  Ordnance  was  authorized  to  convene  such  a  court 
for  the  trial  of  the  enlisted  men  authorized  by  Sec.  1162,  Rev. 
Sts.,  to  be  enlisted  by  him;  the  same  being  deemed  to  con- 
stitute, with  the  ordnance  officers,  such  a  separate  and  dis- 
tinct branch  of  the  military  establishment  as  to  come  within 
the  general  designation  of  "  corps  "  employed  in  the  Article. 
XXXVIII,  190,  540.  So  held  that  the  Chief  Signal  Officer, 
under  the  provisions  of  the  acts  of  July  24,  1870;  June  20, 
1878,  &c.,  relating  to  his  branch  of  the  service,  was  author- 
ized to  order  courts  martial,  as  commanding  a  "  corps ''  in 
tbe  sense  of  this  Article.     XXX,  509. 

2.  It  is  not  necessary  that  an  order  convening  a  court  under 
this  (or  the  next)  Article,  in  time  of  war,  should  state  in  terms 


64  ARTICLES  OF  WAR. 

tliat  it  is  not  practicable  to  detail  a  field  officer  under  Art.  80. 
It  is  good  practice,  however,  and  not  nnusnal,  to  add  a  state- 
ment to  this  eflect.     XXIII,  517. 

3.  Under  par.  898,  Army  Regulations,  it  devolves  upon 
a  department  commander  to  supervise  the  proceedings  of 
regimental  and  garrison  courts  martial  transmitted  to  his 
headquarters,  and  if  he  discovers  any  material  error,  defect 
or  omission  in  a  record  or  in  the  action  taken  in  the  case  by 
the  inferior  commander,  to  return  the  j^roceedings  to  the 
latter,  calling  his  attention  to  the  correction  deemed  proper 
to  be  made.     XXXV,  105,  174. 

EIGHTY-SECOND  ARTICLE. 

'^  Every  officer  commanding  a  garrison,  fort,  or  other  place,  where  the 
troojjs  consist  of  different  corps,  shall,  subject  to  the  provisions  of  article 
eighty,  he  compej^ut  to  apx)oint,  for  such  garrison  or  other  placei^  conrts- 
martial,  consisting  of  three  officers,  to  try  offenses  not  capital." 

1.  It  is  not  essential  that  the  "officer  commanding"  should 
be  of  the  rank  of  field  officer.  A  commanding  officer,  though 
a  captain  or  lieutenant,  may  convene  a  court  martial  under 
this  Article,  provided  he  has  the  required  command.  VIII, 
483. 

2.  A  commanding  officer  is  not  authorized  to  detail  himself, 
with  two  other  officers,  as  a  court  under  this,  (or  the  preced- 
ing,) Article.  XXIV,  2G3.  An ''acting  assistant  surgeon,'' 
not  being  an  officer  of  the  army,  cannot  be  detailed  on  such 
court.    XXX,  109.     [See  Seventy-Fifth  Article  §  1.] 

3.  The  general  term  ''  other  place, '^''  is  deemed  to  be  intended 
to  cover  and  include  any  situation  or  locality  whatever — post, 
station,  camp,  halting  i^lace,  &c.,  at  which  there  may  remain 
or  be,  however  temporarily,  a  separate  command  or  detach- 
ment in  which  different  cori^s  of  the  army  are  represented,  as 
indicated  in  the  next  paragraph.  If  such  command,  so  situ- 
ated, contains  three  officers,  other  than  the  comniander,  avail- 
able for  service  on  court  martial,  the  commander  will  be 
comx)etent  to  exercise  tlie  authority  conferred  by  this  article. 
XLIY,  32. 

4.  Held,  in  view  of  the  early  Orders^  relating  to  the  sub- 
ject andot  the  i^ractice  thereunder,  that  the  presence  on  duty 


^The  original  order  is  G.  O.  5,  Hdqrs.  of  Army,  1843.    And 
see  the  law  as  announced  later  in  G.  O.  13,  Fourth  ]MiI.  Dist., 

18G7. 


ARTICLES  OF  WAR.  65 

witli  a  garrison,  detachment,  or  other  separate  command,  at 
a  fort,  arsenal,  or  other  post  or  place,  and  as  a  part  of  such 
command,  of  a  single  representative,  ofQcer  or  soldier,  of  a 
corps,  arm,  or  branch  of  the  service  other  than  that  of  which 
the  bulk  of  the  command  is  composed, — as  an  ofQcer  of  the 
quartermaster,  subsistence,  or  medical  department,  a  chap- 
lain, an  ordnance  sergeant  or  hospital  steward,  an  officer  or 
soldier  of  artillery  where  the  command  consists  of  infantry  or 
cavalry,  or  rice  versa,  &c., — might  be  deemed  sufficient  to  fix 
upon  the  command  the  character  of  one  '*  where  the  troops 
consist  of  different  corps,"  in  the  sense  of  this  Article,  and  to 
empower  the  commanding  officer  to  order  a  court  martial 
under  the  same.  YII,  174  j  XIY,  48;  XXI,  118;  XXVI, 
254.  The  presence,  however,  with  the  command,  of  a  civil 
employee  of  the  army,  (as  an  "  acting  assistant  surgeon,") 
could  have  no  such  effect.    Till,  483. 

5.  Where,  after  a  garrisdto  court  had  tried  the  cases  re- 
ferred to  it  but  before  its  proceedings  had  been  acted  upon 
the  command  of  the  post  was  devolved  ui)on  the  officer  who 
had  been  president  of  the  court,  held  that  such  officer  would 
legally  and  properly  act  upon  the  proceedings ;  the  case  not 
being  one  in  which  the  action  of  the  department  or  other 
higher  commander  was  required  by  the  one  hundred  and 
ninth  Article  of  war.     XLIII,  2G8. 

EIGHTY-THIRD  ARTICLE. 

"Regimental  and  garrison  courts-martial,  and  field-officers  detailed  to 
try  offenders,  shall  not  liavc  power  to  try  capital  cases  or  commissioned 
officers,  or  to  inflict  a  fine  exceeding  one  month's  pay,  or  to  imprison  or 
put  to  hard  labor  any  non  commissioned  officer  or  soldier  for  a  longer 
time  than  one  month." 

1.  Under  this  Article,  field  officers'  courts  are  invested 
with  the  same  jurisdiction  and  power  of  x)unishment  as  regi- 
mental and  garrison  courts.     I,  400. 

2.  Cajntal  offences,  (?'.  e.,  offences  capitally  punishable,)  not 
being  within  the  jurisdiction  of  inferior  courts,  such  courts 
cannot  take  cognizance  of  acts  specifically  made  punishable 
by  Art.  21,  however  slight  be  the  offences  actually  committed.^ 

'  G.  O.  21,  Hdqrs.  of  Army,  1858.  And  see  G.  O.  IS,  War 
Dept.,  1850;  do.  0,  Dept.  of  L'tah,  1858,  where  the  proceedings 
of  garrison  courts  in  cases  of  capital  offenses  are  i^ronounced 
void. 

5  D 


66  AUTICLES   OF  WAR. 

11,189;    XI,  210;    XXIV,  195;    XXYI,  533;    XXYIII,  53; 
XXXII,  334. 

3.  A  sentence  forfeiting  pecuniary  allowances  in  addition 
to  pay,  where  the  entire  forfeiture  amounted  to  a  sum  greater 
than  one  month's  pay,  held  not  authorized  under  this  Article. 
XXIX,  101. 

4.  Where,  in  a  case  of  a  soklier  whose  monthly  i^ay  was 
$13,  a  forfeiture  of  $15  was  imposed  by  a  garrison  court,  held 
that  the  same,  being  in  excess  of  the  authority  of  the  court, 
could  not  be  made  legal  by  an  approval,  by  the  reviewing 
officer,  of  the  sentence,  as  to  $13,  and  a  disapi>roval  as  to  the 
rest.    XXXVIII,  (j3(j. 

5.  A  sentence,  adjudged  by  a  garrison  court,  of  confinement 
''  till  the  expiration  of  the  term  of  service"  of  a  soldier,  held 
unauthorized  unless  the  soldier  had  no  more  than  one  month 
left  to  serve.    XXVII,  483. 

6.  The  limitation  of  the  authori^  of  inferior  courts  in  regard 
to  sentences  of  imprisonment  and  .fine,  held  not  to  preclude 
the  imx)osition  by  them  of  other  punishments  sanctioned  by 
the  usage  of  the  service ;  such,  for  example,  as  reduction  to 
the  ranks,  either  alone  or  in  connection  with  those  or  one  of 
those  expressly  mentioned.    XXX,  687. 

7.  The  limitations  imi)osed  by  the  Article  have  reference  of 
course  to  single  sentences.  For  distinct  offences  made  the 
subject  of  different  trials  resulting  in  separate  sentences,  a 
soldier  may  be  placed  at  one  and  the  same  time  under  sev- 
eral penalties  of  forfeiture  and  imprisonment,  or  either,  exceed- 
ing together  the  limit  affixed  by  the  Article  for  a  single 
sentence.^    XXXI,  3. 

8.  While  inferior  courts  have,  equally  with  general  courts, 
jurisdiction  ot  all  military  offences  not  cax)ital,  yet,  in  view  of 
the  limitations  upon  their  authority  to  sentence,  it  is  in  gen- 
eral inexpedient  to  resort  to  them  for  the  trial  of  the  graver 
offences, — such  as  larcenies,  aggravated  acts  of  drunkenness, 
protracted  absences  without  leave,  i&c,  a  proper  and  ade- 
quate punishment  for  which  would  be  beyond  the  power  of 
such  tribunals.  So,  as  a  reviewing  officer  is  never  authorized 
to  add  to  the  punishment  imi^osed  by  any  court  martial,  (see 
Sentence  and  Punishment  §  13,)  the  more  serious  offences 
should,  Avhere  practicable,  be  referred  for  trial  to  general  courts 

~  ^See  G.  0. 18,  War  Dept,  1859. 


AUTICLES  OF  WAR.  67 

which  alone  are  vested  with  a  fall  discretion  to  impose  pun- 
ishment in  proportion  to  the  gravity'  of  the  offence.  VII,  3G, 
207;  XI,  210;  XYI,  315;  XXYl,  487,  533;  XLII,  33. 

An  inferior  court  cannot,  however,  legally  decline  to  try 
or  sentence  an  offender  on  the  ground  that  it  is  not  em^^ow- 
ered  under  this  Article  to  impose  a  punishment  adequate  to 
his  actual  offence.    XXVIII,  57. 

EIGHTY  FOURTH  ARTICLE. 

"The  judge-advocate  sliall  administer  to  eacli  member  of  the  court, 
before  they  proceed  upon  any  trial,  the  following  oath,  Avhich  shall  also 
be  taken  by  all  members  of  regimental  and  garrison  courts-martial :  *  You, 
A  B,  do  swear  that  you  will  well  and  truly  try  and  determine,  according 
to  evidence,  the  matter  now  before  you,  between  the  United  States  of 
America  and  the  prisoner  to  be  tried,  and  that  you  will  duly  administer 
justice,  without  partiality,  favor,  or  affection,  according  to  the  provis- 
ions of  the  rules  and  articles  for  the  government  of  the  armies  of  the 
United  States,  and  if  any  doubt  should  arise,  not  explained  by  said  arti- 
cles, then  according  to  your  conscience,  the  best  of  your  understanding, 
and  the  custom  of  war  in  like  cases  ;  and  you  do  further  swear  that  you 
will  not  divulge  the  sentence  of  the  court  until  it  shall  be  published  by 
the  proper  authority ;  neither  will  you  disclose  or  discover  the  vote  or 
opinion  of  any  jiarticular  member  of  the  court-martial,  unless  required  to 
give  evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  a  due  course 
of  law.     So  help  you  God.' " 

1.  This  Article  makes  the  administering  to  the  court  of  the 
form  of  oath  thereby  prescribed  an  essential  preliminary  to 
its  entering  upon  a  trial.  ^  Until  the  oath  is  taken  as  speci- 
fied, the  court  is  not  qualified  '-to  try  and  determine." 
XXXVIII,  196.  The  arraignment  of  a  prisoner  and  reception 
of  his  plea — which  is  the  commencement  of  the  trial— before 
the  court  is  sworn,  is  without  legal  effect.  IX,  293;  XI,  323. 
The  Article  requires  that  the  oath  shall  be  taken  not  by  the 
court  as  a  whole,  but  by  "  each  member."  Where,  therefore, 
all  the  members  are  sworn  at  the  same  time,  the  judge  advo- 
cate will  i)referably  address  each  member  by  name,  thus 
"  you  A.  B.,  0.  D.,  E.  F.,  &c.,  do  severally  swear,"  &c.    XIII, 

^  See  in  this  connection,  G.  O.  15,  Hdqrs.  of  Army,  1880, 
cited  under  Judge  Advocate,  §  1,  which,  in  directing  that 
judge  advocates  shall  be  detailed  for  regimental  and  garrison, 
as  well  as  general,  courts  martial,  rescinds  G.  O.  49  of  1871, 
prescribing  a  special  form  of  oath  tor  the  former  courts,  and 
thus  provides  for  their  taking  the  due  and  regular  oath  recited 
in  Art.  84. 


68  ARTICLES  OF  WAR. 

483.  A  member  added  to  the  court,  after  tlie  members  origi- 
nally detailed  have  been  duly  sworn,  should  be  separately 
sworn  b}^  the  judge  advocate  in  the  full  form  i)rescribed  by 
the  xYrticle :  otherwise  he  is  not  qualified  to  act  as  a  member 
of  the  court.  YIII,  7^  X,  5G3;  XIV,  350.  A  member  who 
X^refers  it  may  be  affirmed  instead  of  sworn.  II,  562.  [See 
Sec.  1,  Eev.  Sts.] 

2.  The  members  are  sworn  to  try  and  determine  tlie  matter 
before  them  at  the  time  of  the  administering  of  the  oath.  In 
a  case,  therefore,  where,  after  the  court  had  been  sworn  and 
the  accused  had  been  arraigned  and  had  i^leaded,  an  addi- 
tional, charge,  setting  forth  a  new  and  distinct  oft'ence  was 
introduced  into  the  case,  and  the  accused  was  tried  and  con- 
victed upon  the  same ; — held  that,  as  to  this  charge,  the  pro- 
ceedings were  fatally  defective,  the  court  not  having  been 
sworn  to  try  and  determine  such  charge.  ^  XXIY,  513.  [And 
see  Charge  §  9.] 

3.  It  is  a  departure  from  the  engagement  exjiressed  in  the 
body  of  the  oath — to  try  and  determine  according  to  evidence, 
and  administer  justice  according  to  the  Articles  of  War,  &c., 
— for  a  court  martial  to  determine  a  case  either  upon  per- 
sonal knowledge  of  the  facts  possessed  by  the  members  and 
not  put  in  evidence,  or  according  to  the  private  views  of 
justice  of  the  members  independently  of  the  provisions  of  the 
code.  2    XXX,  56. 

4.  Where  the  vote  of  each  member  of  the  court  upon  one 
of  several  specifications  upon  which  the  accused  was  tried, 
was  stated  in  the  record  of  trial,  held  that  such  statement  was 
a  clear  violation  of  the  oath  of  the  court,  though  it  did  not 
affect  the  validity  of  the  i)roceedings  or  sentence.  II,  59.  A 
statement  in  the  record  of  trial  to  the  effect  that  all  the  mem- 
bers concurred  in  the  finding  or  in  the  sentence,  while  it  does 
not  vitiate  the  proceedings  or  sentence,  is  a  direct  violation 
of  the  oath  prescribed  by  this  Article.  II,  76  ;  YII,  3.  [See 
Sixty  Secojsd  Article  §  6.] 

5.  The  disclosing  of  the  finding  and  sentence  to  a  clerk  by 
permitting  him  to  remain  with  the  court  at  the  final  deliber- 

'  See  G.  0.  M.  O.  39,  War  Dept.  1867  ;  G.  O.  13,  l^orthern 
Dept.  1864. 

^Compare  G.  O.  21,  Dept.  of  the  Ohio,  1866  j  G.  0.  M.  O. 
41,  Dept.  of  Texas,  1874. 


ARTICLES  OF  WAR.  69 

ation  aDcl  enter  the  judgment  in  tlie  record,  is  a  grave  irreg- 
ularity, though  one  which  does  not  affect  the  validity  of  the 
proceedings  or  sentence.  XXYIII,  146.  [See  Clerk  §  3.J 
6.  The  words  "a  court  of  justice"  are  deemed  to  mean  a 
civil  or  criminal  court  of  the  United  States,  or  of  a  State,^  &c., 
and  not  to  include  a  court  martial.  ^  A  case  can  hardlj^  be 
supposed  in  which  it  would  become  proper  or  desirable  for  a 
court  martial  to  inquire  into  the  votes  or  opinions  given  in 
closed  court  by  the  members  of  another  similar  tribunal. 
XLI,  450. 

See  sentence  AND  PUNISHMENT  ^  G. 

EIGHTY-SIXTH  AETICLE. 

''A  court  martial  may  ijunish,  at  discretion,  any  person  wlio  uses  any 
menacing  words,  signs,  or  gestures,  in  its  presence,  or  who  disturbs  its 
proceedings,  by  any  riot  or  disorder." 

1.  The  power  of  a  court-martial  to  punish,  under  this  Arti- 
cle, being  confined  practically  to  acts  done  in  its  immediate 
IDresence,^  such  a  court  can  have  no  authority  to  punish,  as 
for  a  contemj)t,  a  neglect  by  an  officer  or  soldier  to  attend  as 
a  witness  in  compliance  with  a  summons.*    Y,  172. 

2.  Held  that  a  court-martial  would  not  be  authorized  to 
punish,  as  for  a  contempt,  under  this  Article,  (or  otherwise,) 
a  civilian  witness  didy  summoned  and  appearing  before  it, 
but,  when  put  on  the  stand,  declining,  (without  disorder,)  to 
testify.    XLII,  595. 

3.  Where  a  contempt  within  the  descriiDtion  of  this  Article 
has  been  committed,  and  the  court  deems  it  proper  that  the 
offender  shall  be  punished,  the  proper  course  is  to  susi^eud 

^  The  only  case  which  has  been  met  with  in  which  the  mem- 
bers of  a  court  martial  have  been  required  to  disclose  their 
votes  hj  the  process  of  a  civil  court,  is  that  of  In  re  Mac- 
kenzie, 1  Pa.  Law  J.  E.  356,  in  Avhich  the  members  of  a  naval 
court  martial  were  comi^elled,  against  their  objections,  to 
state  their  votes  as  given  upon  the  findings  at  a  particular 
trial. 

2  In  the  present  corresponding  British  Article,  the  words 
''or  a  court  martial"  are  added  after  the  words  "  a  court  of 
justice.'^ 

^It  was  held  by  the  Secretary  of  War  in  the  case  of  Lt.  Col. 
Backenstos — G.  O.  14,  War  Dept.,  1850, — that  a  court  mar- 
tial had,  under  this  Article,  no  power  to  j)unish  its  own 
members. 

*  As  to  the  i)ower  of  courts  of  inquiry  to  iDunish  for  contemj)t, 

see  ONE  HUNDRED  AND  FIFTEENTH  ARTICLE  §  5,  and  notC. 


70  ARTICLES   OF   WAR. 

tbe  regular  business,  and  after  giving-  the  party  an  oppor- 
tunity to  be  heard,  exphiin,  &c./  to  proceed — if  the  explana- 
tion is  insufficient — to  impose  a  i)unishment ;  resuming  there- 
upon the  original  proceedings.  The  action  taken  is  properly 
summary,  a  formal  trial  not  being  called  for.  Close  confinement 
in  quarters  or  in  the  guard  house  during  the  trial  of  the  pend- 
ing case,  or  forfeiture  of  a  reasonable  amount  of  i)ay,has  been 
the  more  usual  punishment.  XXX,  3G1, 570.  Instead  of  pro- 
ceeding against  a  military  person  for  a  contempt  in  the  mode 
contemplated  by  this  Article,  the  alternative  course  may  be 
pursued  of  bringing  him  to  trial  before  a  new  court  on  a  charge 
for  a  disorder  under  Art.  G2.^     XXXI,  59. 

EIGHTY-EIGHTH  AETICLE. 

''  Members  of  a  conrt-martial  may  be  cballengecl  by  a  prisoner,  but  only 
for  cause  stated  to  tbe  court.  The  court  sliall  determiue  tbe  relevancy 
and  validity  thereof,  and  shall  not  receive  a  challenge  to  more  than  one 
member  at  a  time." 

1.  This  Article  authorizes  the  exercise  of  the  right  of  chal- 
lenge before  all  courts  except  field  officers'  courts.  These 
courts  are  not  subject  to  be  challenged,  because,  being  corn- 
loosed  of  but  one  member,  there  is  no  authority  provided  which 
is  comi^etent  to  i^ass  upon  the  validity  of  the  challenge.  XI, 
210. 

2.  It  is  ordinarily  a  sufficient  ground  of  challenge  to  a  mem- 
ber that  he  is  the  author  of  the  charges  and  is  a  material  wit- 
ness in  the  case.  II,  584;  XX,  18;  XXXI,  210;  XXXVII, 
43,  315 ;  XXXIX,  240.  The  mere  fact  that  he  is  to  be  a  wit- 
ness is  not  in  general  to  be  held  sufficient.  II,  584 ;  XXXIII, 
137. 

3.  The  mere  fact  that  a  member  signed  or  formally  pre- 
ferred the  charges  is  not  sufficient  ground  of  objection,  since 
he  may  have  done  so  ministerially  or  by  the  order  of  a  supe- 
rior. IX,  258.  But  where  a  member,  upon  investigation  or 
otherwise,  has  initiated  or  preferred  the  charges  as  accuser, 
or  as  prosecutor  has  caused  them  to  be  brought  to  trial,  lieis- 
properly  subject  to  challenge.  XXXIII,  204 ;  XXXVII,  315. 
Thus,  that  a  member  had  originated  and  preferred  the  charge 

^See  G.  0.  M.  O.  37,  Fourth  Mil.  Dist.,  18(38. 
^Compare  Samuel,  034;  Simmons  §  434.     The  latter  course 
has  not  unfrequently  been  adopted  in  our  i)ractice. 


ARTICLES   OF   WAR.  71 

for  a  disobedience  of  his  own  order,  was  held  good  cause  of 
challenge.  XXX YI,  257.  So,  in  a  case  of  a  trial  for  an 
assault  upon  an  officer,  the  fact  that  the  officer  upon  whom 
the  assault  was  committed,  and  who  was  the  prosecuting  wit- 
ness, was  a  member  of  the  court,  w^as  held  to  constitute  com- 
plete cause  of  challenge  to  him  as  member.     XXXIII,  257. 

4.  That  a  member  is  the  regimental  or  company  commander 
of  the  accused  does  not,  per  se,  constitute  sufficient  ground  of 
challenge.  But  such  ground  may  exist  where  the  commander 
has  i^referred  the  charges,  or  where  the  relations  between  him 
and  the  accused  have  been  such  as  to  give  rise  to  a  presump- 
tion of  prejudice.     VIII,  534;  XXII,  G31. 

5.  Where  a  member,  before  the  trial,  had  expressed  an  oi^in- 
ion,  based  ui)on  a  knowledge  of  the  facts,  that  the  accused 
would  be  convicted  whichever  way  he  might  plead,  held  that 

'he  had  clearly  i)rejudged  the  case,  and  that  the  court  should 
have  sustained  an  objection  taken  to  him  by  the  accused, 
although,  upon  being  challenged,  he  declared  that  he  was 
without  prejudice.^     XXXYII,  491.     [See  §  12,  infra.] 

G.  A  member,  on  being  challenged  for  i)rejudice,  declared 
that  he  did  not  consider  the  accused  (an  officer)  a  gentleman, 
and  would  not  associate  with  him,  and  that  he  had  stated  so  ; 
but  he  added  at  the  same  time  that  he  was  not  i)rejudicedfor 
or  against  him.  Held,  especially  as  one  of  the  charges  was 
"conduct  unbecoming  an  officer  and  a  gentleman,"  that  the 
challenge  was  imi)roperly  overruled  by  the  court.  XXIY, 
584. 

7.  It  is  not  good  ground  of  challenge  to  a  member  that  he 
is  junior  in  rank  to  the  accused,  nor  is  it  sufficient  ground 
that  the  member  will  gain  a  step  or  "file"  in  the  line  of  pro- 
motion if  the  accused  is  dismissed.  It  is  however  a  sufficient 
cause  of  challenge  to  a  member,  that,  if  the  accused,  (an  offi- 
cer,) be  convicted  and  sentenced  to  be  dismissed,  the  member 
will  be  forthwith  entitled  to  promotion.  XXXIII,  137; 
XXXYII,  189  ;  XXXYIII,  3G6,  37G. 

8.  Held  sufficient  ground  of  challenge  to  a  member  of  a 
court  martial,  that  he  has  previously  taken  part  in  an  investi- 
gation of  the  same  case  before  a  court  of  inquiry,  though  such 
court  did  not  express  a  formal  opinion.     XXIII,  406. 

^  See  this  oiunion  as  adopted  by  the  President  in  G.  0.  M. 
O.  Gi},  Hd(ps.  of  Army,  1879. 


72  ARTICLES  OF  WAR. 

9.  Held  good  grouDd  of  challenge  to  a  member  oY  a  court 
martialj  in  a  case  of  alleged  theft  by  a  soldier,  that  such  mem- 
ber had  been  a  member  of  a  previous  court  of  inquiry  which 
had  investigated  the  case  and  fixed  the  misai>propriation  of 
the  property  upon  the  accused.     XXXVI,  599. 

10.  Held  that  the  members  of  a  court  martial  who  had  com- 
posed a  previous  court  by  which  the  same  accused  had  been 
tried  for  the  same  act  though  under  a  difterent  chargCj  were 
all  subject  to  be  set  aside  on  challenge.     XXYIII,  181. 

11.  A  challenged  member,  on  being  j)ersonally  examined  as 
to  his  bias,  &c.,  need  not  be  put  on  oath.  At  this  stage,  in- 
deed, of  the  proceedings,  neither  the  president  nor  judge  ad- 
vocate is  authorized  to  administer  an  oath.  IX,  258;  XXIV, 
555.  It  is  not  necessary,  (though  not  unusual,)  for  a  member 
to  withdraw  from  the  court  room  on  being  challenged  and 
pending  the  deliberation  on  the  objection.    V,  196. 

12.  Courts  should  be  liberal  in  i^assing  upon  challenges, 
but  should  not  entertain  an  objection  which  is  not  sjjecific,  or 
allow  one  ui)on  its  mere  assertion  by  the  accused  without 
l^roof,  and  in  the  absence  of  any  admission  on  the  i)art  of  the 
member.^  XXIV,  584  5  XXXVI,  578.  A  positive  declara- 
tion by  the  challenged  member  to  the  effect  that  he  has  no 
prejudice  or  interest  in  the  case,  will,  in  general,  in  the  ab- 
sence of  material  evidence  in  supi^ort  of  the  objection,  justify 
the  court  in  overruling  it.     XVII,  105. 

13.  Where,  before  arraignment,  the  accused,  (an  ofiicer,) 
without  having  personal  knowledge  of  the  existence  of  a 
ground  of  challenge  to  a  member,  had  credible  hearsay  in- 
formation of  its  existence,  held  that  he  should  properly  have 
raised  the  objection  before  the  members  were  SAvorn,  and  that 
the  court  was  not  in  error  in  refusing  to  allow  him  to  take  it 
at  a  subsequent  stage  of  the  trial.     XLI,  411. 

14.  The  fact  that  a  sufficient  cause  of  challenge  exists  against 
a  member  but,  through  ignorance  of  his  rights,  is  not  taken 
advantage  of  by  the  accused,  or  if  asserted  is  improperly 


1  See  G.  0.  M.  O.  0(],  War  Dept.,  1875.  The  challenge,  the 
allowance  of  which  by  the  court  in  Gen.  Twiggs'  case  was  dis- 
approved in  G.  O.  4,  War  Dept.,  1858,  Avas  simply  a  gene- 
ral objection  to  the  member  by  the  accused  on  account  of 
"  some  unpleasant  circumstances  growing  out  of  their  official 
relations ;  "  no  specific  allegation  of  bias  being  made,  and  the 
member  himself  expressly  disclaiming  any  feeling  of  prejudice. 


ARTICLES  OF  ^YAR.  73 

overruled  by  the  court,  can  affect  in  no  manner  tlie  validity  in 
law  of  the  proceedings  or  sentence,  though  it  may  sometimes 
properly  furnish  occasion  for  a  disapproval  of  the  proceedings, 
&c.,  or  a  remission  in  whole  or  in  part  of  the  sentence.  ^  YIII, 
534;  IX,  258;  XX,  18;  XXXYll,  315,  401;  XXXIX,  240. 

15.  The  Article  hnposes  no  limitation  upon  the  exercise  of 
the  right  of  challenge  other  than  that  "  more  than  one  mem- 
ber shall  not  be  challenged  at  a  time."  Thus  while  the  i)anel, 
or  the  court  as  a  whole,  is  not  subject  to  challenge,  yet  all  the 
members  may  be  challenged  provided  they  are  challenged 
separately.  XXYIII,  G32;  XXX,  3G1;  XXXYIII,  53.  The 
Article  contains  no  authority  for  challenging  the  judge  advo- 
cate.   XXXY,  G18.    [See  Judge  Advocate  §  8.J 

16.  The  Court,  of  itself,  cannot  excuse  a  member,  in  the 
absence  of  a  challenge.  A  member,  not  challenged,  but  con- 
sidering himself  disqualified,  can  be  relieved  only  by  applica- 
tion to  the  convening  authority.     XXXYII,  34. 

NIXETY-FIRST  ARTICLE. 

^'  The  depositions  of  witnesses  residing  beyond  the  limits  of  the  State, 
Territory,  or  district  in  wliicli  any  military  court  may  be  ordered  to  sit,  if 
taken  on  reasonable  notice  to  the  opposite  party  and  duly  authenticated, 
may  be  read  in  evidence  before  such  court  in  cases  not  capital." 

1.  A  deposition  cannot  be  read  in  evidence  in  a  capital 
case^ — as  in  a  case  of  a  violation  of  Art.  21,  or  a  case  of  a 
spy,  or  one  of  desertion  in  time  of  war :  otherwise  in  a  case 

^  See  Opinion  of  the  Attorney  General  of  January  10,  1878, 
(XY  Opins.  — ,)  in  which  the  opinion,  exjiressed  by  the  Judge 
Advocate  General  in  the  most  recent  of  the  cases  upon  which 
this  paragraph  is  based, — that  the  fact  that  one  of  the  cliarges 
upon  which  the  accused  was  convicted  was  preferred  by  a 
member  of  the  court  who  also  testified  as  a  witness  on  the 
trial,  (but  who,  though  clearly  subject  to  objection,  was  not 
challenged  by  the  accused,)  could  not  affect  the  vahdity  of  the 
sentence  of  dismissal  alter  the  same  bad  been  duly  confirmed, — 
is  concurred  in  by  the  Attorney  General.  And,  to  a  similar 
effect,  see  Keyes  r.  United  States,  15  Ct.  CI. — 

In  G.  C.  M.  O.  88,  Dept.  of  Dakota,  1878,  the  point  is  noticed 
that  where  a  challenge  intei'posed  by  the  accused  has  been 
improperly  disallowed,  a  subsequent  plea  of  guilty  is  not  to 
be  treated  as  a  waiver  of  the  advantage  to  which  he  may  be 
entitled  by  reason  of  the  improper  ruling. 

-As  to  the  meaning  of  "  capital,"' see  Sixty-second  Ar- 
ticle §  1  ;  ElGHTY-THIKD  AllTICLE  §  2. 


74  ARTICLES  PF  WAR. 

of  desertion  in  time  of  peace.  Ill,  485  -,  IX,  646 ;  XXXII,  6 ; 
XLII,  177,  361.  Xor  is  the  deposition  admissible  of  a  witness 
wlio  resides  in  the  State,  &c.,  witliin  w  bicU  the  conrt  is  held.' 
Xor,  in  view  of  the  limitations  of  the  Article,  can  such  a 
deposition,  or  a  deposition  in  a  capital  case,  be  introduced  in 
evidence  by  either  party,  even  if  the  other  party  waives  ob- 
jection and  consents  to  its  admission.     XLII,  361. 

2.  An}^  official  authoiized  to  take  depositions  by  the  laws 
of  the  State,  &c.,  in  which  the  witness  is  examined,  may  take 
a  deposition  intended  to  be  used  in  evidence  before  a  military 
court.  IX,  632.  Or  the  deposition  may  be  taken,  by  stipu- 
lation, by  some  officer  of  the  army  or  other  person  agreed  upon 
by  the  parties. 

3.  Where  the  evidence  of  high  officers  or  public  officials — 
as  a  department  commander,  or  chief  of  a  bureau  of  the  War 
Department — is  required  before  a  court  martial,  the  same,  es- 
pecially if  the  court  is  assembled  at  a  distant  point,  should  be 
taken  by  deposition,  if  authorized  under  this  Article.  Such 
officers  should  not  be  required  to  leave  their  public  duties  to 
attend  as  witnesses,  except  where  their  dei)ositions  will  not 
be  admissible,  and  where  the  case  is  one  of  si3ecial  importance 
and  their  testimony  is  essential.  VII,  5^  XLII,  177.  The 
Secretary  of  War  should  not  be  required  to  attend  as  a  wit- 
ness, or  to  give  his  deposition  in  a  military  case,  where  the 
chief  of  a  staff  corps  or  other  officer,  in  whose  bureau  the 
evidence  sought  is  matter  of  record,  or  who  is  personally 
acquainted  with  the  facts  desired  to  be  proved,  can  attend  or 
depose  in  his  stead.    XXXV,  505.     [See  Witness  §  10,  11.] 

4.  The  x)arty  at  whose  instance  a  deposition  has  been  taken, 
cannot  be  admitted,  against  the  objection  of  the  other  party, 
to  introduce  only  such  parts  of  the  deposition  as  are  favora- 
ble to  him  or  as  he  may  elect  to  use  :  he  uuist  offer  the  depo- 
sition in  evidence  as  a  whole  or  not  offer  it  at  all.  XXXVI, 
236. 

5.  If  the  i)arty  at  whose  instance  a  deposition  has  been 
taken  decides  not  to  put  it  in,  it  may  be  read  in  evidence  by 
the  other  party.  One  party  cannot  withhold  a  deposition, 
(duly  taken  and  admissible  under  this  Article,)  against  the 
consent  of  the  other.     XXXVII,  9. 

^  Xote  the  remarks  of  the  reviewing  authoiity  in  O.  C.  M. 
O.  102,  I3ept.  of  the  East,  1871  j  do.  1,  Division  of  South,  1875. 


ARTICLES   OF   WAR.  75 

G.  Held  that  the  deposition  of  a  witness  residing  in  a  for- 
eign country,  and  taken  before  a  qualified  person — as  an 
American  consul,  would  be  admissible  in  evidence  under  this 
Article  equall}^  with  the  deposition  of  a  resident  of  the  United 
States.    XLII,  114. 

7.  Where  the  judge  advocate  offered  in  evidence,  on  the 
l^art  of  the  prosecution,  a  deposition  which  proved  to  have 
been  given  by  a  person  other  than  the  one  to  whom  the  inter- 
rogatories were  addressed,  and  the  accused  objected  to  its 
Introduction,  but  the  objection  was  overruled  by  the  court, 
lield  error  5  the  fact  that  the  intended  deponent  was  but  the 
agent,  in  the  transaction  inquired  about,  of  the  person  who 
actually  furnished  the  deposition,  not  being  sufficient  to  make 
such  deposition  admissible  except  by  consent  of  parties.^ 
XLII,  110. 

NIXETY-SECOKD  AETICLE. 

"  All  persons  wlio  give  evidence  before  a  court-martial  shall  be  exam- 
ined on  oath,  or  affirmation,  in  the  following  form :  '■  You  swear  (or  affirm) 
that  the  evidence  you  shall  give,  in  the  case  now  in  hearing,  shall  be  the 
truth,  the  whole  truth,  and  nothing  but  the  truth.     So  help  you  God.'" 

1.  This  Article  prescribes  a  single  specific  form  of  oatli  to 
be  taken  by  all  witnesses.  The  Constitution,  however,  (Art. 
I  of  Amendments,)  has  x)rovided  that  Congress  shall  make  no 
law  prohibiting  the  free  exercise  of  religion.  AVhere,  there- 
fore, the  prescribed  form  is  not  in  accordance  with  the  relig- 
ious tenets  of  a  witness,  he  should  be  pern^itted  to  be  sworn 
according  to  the  ceremonies  of  his  own  faith  or  as  he  may 
deem  binding  on  his  conscience.'^     XII,  biS. 

2.  The  Article  does  not  prescribe  by  whom  the  oath  shall  be 
administered.  By  the  custom  of  the  service  it  is  administered 
by  the  judge  advocate.  When  the  judge  advocate  himself 
takes  the  witness  stand,  he  is  properly  sworn  by  the  i>resi- 
dent  of  the  court.    XLII,  269. 

3.  A  witness  Avho  has  once  been  sworn  and  has  testified,  is 
not  required  to  be  re-sworn  on  being  subsequently  recalled 
to  the  stand  by  either  party.  The  re-swearing,  however,  of 
such  a  witness  will  not  affect  the  legal  validity  of  the  pro- 
ceedings or  sentence.     XXXII,  310. 

"~^See  G.  0.  M.  O.  9,  Hdqrs.  of  Army,  1879. 
2  See  1  Greenl.  Ev.  §  371;  O'Brien,  200. 


76  ARTICLES  OF  WAR. 

NINETY-THIED  AETICLE. 

''A  court-martial  shall,  for  reasonable  cause,  grant  a  continuance  to 
either  party,  for  sucli  time,  and  as  often,  as  may  appear  to  be  just:  Pro- 
vided, That  if  the  prisoner  be  in  close  confinement,  the  trial  shall  not  be 
delayed  for  a  period  longer  than  sixty  days." 

1.  lu  making  au  api>licatiou  for  a  contmuance  or  postpone- 
ment nnder  this  Article,  on  account  of  the  absence  of  a  wit- 
ness, the  forDi  of  affidavit  i^rescribed  in  par.  887  of  the  Army 
Eegnlations  shoukl  in  general  he  substantially  observed.  But 
while  the  court  may  refuse  the  application  if  this  regulation 
be  not  followed,  it  may,  in  its  discretion,  refrain  from  insisting 
that  the  same  be  strictly  com]^lied  with,  and  accej^t  a  modi- 
fied form.^  It  should  however  in  all  cases  require  that  the 
desired  evidence  appear  or  be  shown  to  be  material,  and  not 
merely  cumulative,^  and  that  to  await  its  produfction  will  not 
delay  the  trial  for  an  unreasonable  period.  It  should  also,  in 
general,  before  granting  the  continuance,  be  assured  that  the 
absence  of  the  witness  is  not  owing  to  any  neglect  on  the 
X^art  of  the  applicant.  This  feature,  however,  will  not  be  so 
much  insisted  upon  in  military  as  in  civil  cases.^  \'III,  662  j 
XXYI,  311. 

2.  Where  ^''veasonahle  ccvuseJ^  is,  in  the  judgment  of  the 
court,  exhibited,  the  party  is  entitled  to  some  continuance 
under  the  Article.*  A  refusal,  indeed,  by  the  court  to  grant 
such  continuance  will  not  invalidate  the  proceedings,  but,  if 

^  It  is  not  the  practice  of  courts  martial  to  admit  counter 
affidavits  from  the  opposite  party  as  to  what  the  absent  wit- 
ness would  testify.  And  as  to  the  civil  practice,  see  Williams 
V.  State,  6  Nebraska,  334. 

^  Compare  People  v.  Thomi)son,  4  Cal.  238*,  Parker  v.  State, 
55  Miss.  414. 

^  A  military  accused  can  not  be  charged  with  laches  in  not 
procuring  the  attendance  at  his  trial  of  a  witness  who  is  pre- 
vented from  being  x)resent  by  sui>erior  military  authority. 
Thus  in  a  case  in  G.  O.  03,  Dept.  of  Dakota,  1872,  an  accused 
soldier  was  held  entitled  to  a  continuance  till  the  return  of 
material  witnesses  then  absent  on  an  Indian  exj^edition. 

*  It  would  properly  be  so  held  upon  common  law  principles, 
even  independently  of  the  ])ositive  terms  of  the  Article.  In 
Eex  V.  D'Eon,  1  W.  Blacls:.  514,  it  was  declared  by  Lord 
Mansfield  that — "No  crime  is  so  great,  no  proceedings  so  in- 
stantaneous, but  that,  u])on  sufficient  grounds^  the  trial  may 
be  put  off." 


ARTICLES   OF  WAR.  77 

tlie  accused  lias  tlius  been  prejudiced  in  his  defence,  may 
properly  constitute  good  ground  for  disapproving  the  sen- 
tence/ or  for  mitigating  or  x)artiall3'  remitting  the  punish- 
ment.    XXII,  502;  XXXIII,  GIG;  XXXIX,  13. 

3.  Where  an  accused  soldier,  by  reason  of  his  regiment 
having  been  moved  a  long  distance  since  his  arrest,  was  sep- 
arated at  his  trial,  from  certain  witnesses  material  to  his  de- 
fence, lieldj  that  he  was  entitled  to  a  reasonable  continuance 
for  the  purpose  of  procuring  their  attendance  or  their  deposi- 
tions.    XXI Y,  555. 

4.  That  the  charges  and  specifications  upon  which  an  ac- 
cused is  arraigned  differ  in  a  material  particular  from  those 
contained  in  the  coi)y  served  upon  him  before  arraignment, 
may  well  constitute  a  sufficient  ground  for  granting  him  ad- 
ditional time  for  the  preparation  of  his  defence.  XXIV,  513. 
[See  Charge  §  28.] 

5.  Where  after  arraignment  a  material  and  •  substantial 
amendment  is  allowed  by  the  court  to  be  made  by  the  judge 
advocate  in  a  specification,  the  eflect  of  which  amendment  is 
to  necessitate  or  make  desirable  a  further  preparation  for  his 
defence  on  the  part  of  the  accused,  a  reasonable  postpone- 
ment for  this  purpose  will  in  general  properly  be  granted  by 
the  court.     XXII,  kyS. 

6.  It  is  in  general  good  ground  for  a  reasonable  continuance, 
that  the  accused  needs  time  to  procure  the  assistance  of  coun- 
sel,^ if  it  is  made  to  appear  that  such  counsel  can  probably  be 
obtained  within  the  time  asked,  and  that  the  accused  is  not 
chargeable  with  remissness  in  not  having  already'  provided 
himself  with  counsel.    XIII,  400. 

XIXETY-FOUETH  AETICLE.^' 

"Proceedings  of  trials  shall  be  carried  on  only  between  the  hours  of 
eight  in  the  morning  and  three  in  the  afternoon,  excepting  in  cases  which, 
in  the  opinion  of  the  officer  appointing  the  court,  recpiire  immediate  ex- 
ample." 

1.  This  Article  is  imperative  upon  the  point  that  no  pro- 
ceedings of  trials  shall  be  carried  on  before  eight  o'clock  a.  m. 

^  See  G.  0.  M.  O.  35,  War  Dent.  1SG7;  do.  128,  Hdqrs.  of 
Army,  187G;  G.  O.  24,  Dept.  of  Arizona,  1874. 

-  See  G.  C.  :M.  O.  25,  War  Dept.,  1875. 

•''  Xote  the  different  reasons  for  this  enactment  assigned  by 
Attorney  General  Speed,  (XI  Opins.  141,)  and  Coppee,  (p.  50!^) 
And  see,  on  this  point,  Hough,  (Practice,)  377. 


78  ARTICLES  OF  WAR. 

or  after  tliree  o'clock  i>.  m.,  except  in  the  class  of  cases  specifi- 
cally indicated.  Where,  therefore,  the  record  shows  aflirma- 
tively  that  any  particular  material  proceeding  of  the  trial  was 
had  by  the  court  before  eight  or  after  three  o'clock,  and  sets 
forth  no  authority  for  the  same  from  the  convening  officer, 
(such  as  the  usual  direction  or  i^ermission  in  the  convening 
order,  that  the  court  '^will,"  or  "may,  sit  without  regard  to 
hours,")  such  proceeding  must  be  held  unauthorized  and  of 
no  legal  effect.^  And  if  the  proceeding,  thus  futile,  was  one 
necessary  to  the  completeness  of  the  trial,  or  otherwise  im- 
portant, it  should  be  repeated,  or  taken  de  novo,  within  legal 
hours.     II,  123  5  VII,  433;  XXIII,  G27;  XXXYI,  490. 

2.  The  Article,  however,  does  not  require  that  the  record 
shall  show  in  terms  that  the  hours  indicated  were  observed. 
It  is  i^roper,  indeed,  and  the  best  practice,  to  state  the  hour 
of  each  meeting  and  adjournment;  but  where  no  such  entry 
appears  in  the  proceedings,  the  same  will  not  be  invalidated, 
but,  in  the  absence  of  evidence  to  the  contrary,  it  will  be 
presumed^  in  favor  of  the  record,^  that  the  court  did  not  sit 
except  between  the  prescribed  hours.  XXII,  635;  XXIII, 
627;  XXX,  144. 

3.  The  entertaining  by  the  court,  after  three  o'clock  p.  m., 
of  a  motion  to  adjourn  would  not  be  unauthorized,  such  a 
motion  not  being  properly  a  proceeding  of  a  trial  in  the  sense 
of  the  Article.     XXVIII,  189. 

NINETY-SIXTH  ARTICLE. 

"No  person  shall  be  sentenced  to  sulfer  death,  except  by  the  concur- 
rence of  two-thirds  of  the  members  of  a  general  court-martial,  and  in  the 
cases  herein  expressly  mentioned." 

1.  Though  it  has  sometimes  been  viewed  otherwise,  it  is 
deemed  quite  clear  ui^on  the  terms  of  the  present  Article, 

^  In  some  cases  where  the  trials  have,  without  express  au- 
thority been  commenced  before  8  a.  m.,  or  continued  after  3 
p.  m.,  the  entire  proceedings  and  sentences  have  been  disap- 
proved as  fatally  defective.  See  G.  O.  2,  Dept.  of  the  South, 
1873;  do.  94,  liept.  of  the  Gulf,  1864;  S.  O.  281,  Dept.  of 
Washington,  1861.  Strictly,  however,  it  is  only  the  proceed- 
ing had  during  the  inhibited  interval  tliat  is  unautljorized 
and  inoi)erative,  and  the  irregularity  involved  may  in  general 
be  remedied  as  indicated  in  the  text. 

^  As  to  the  presumption  in  favor  of  the  regularity  of  judicial 
proceedings,  see  1  Greenl.  Ev.  §  19;  also  Eecoed  §  3,  and  note. 


ARTICLES  OF  VTATl.  79 

that  it  is  not  necessary  to  the  legality  of  a  death  sentence 
that  two-thirds  of  the  court  should  have  concurred  in  the 
finding  as  well  as  the  sentence.  ^  Further, — in  the  absence  of 
any  requirement  to  that  effect  in  the  Article, — it  is  ,  not 
deemed  essential  to  the  validity  of  the  sentence  that  the 
record  should  state  the  fact  that  two-thirds  of  the  court  con- 
curred therein.  The  practice,  however,  has  been  to  add  such 
a  statement.    XX,  GOG. 

2.  A  sentence  of  death  imposed  by  a  court-martial,  upon  a 
conviction  of  several  distinct  offences,  will  be  authorized  and 
legal  if  any  one  of  such  offences  is  made  cai)itally  jjunishable 
by  the  Articles  of  War,  although  the  other  offenses  may  not 
be  so  punishable.     Ill,  253,  27G,  480. 

3.  A  court-martial,  in  imposing  a  death  sentence,  should 
not  designate  a  time  or  place  for  its  execution,  such  a  desig- 
nation not  being  within  its  province  but  pertaining  to  that  of 
the  reviewing  authorit3\  If  it  does  so  designate,  this  part 
of  the  sentence  may  be  disregarded,  and  a  different  time  or 
place  fixed  by  the  commanding  general.    Ill,  G50. 

4.  Wliere  a  death  sentence  imi^osed  by  a  court-martial  has 
been  directed  by  the  proper  authority  to  be  executed  on  a 
I)articular  day,  and  this  day,  owing  to  some  exigency  of  the 
service,  has  gone  by  without  the  sentence  being  executed,  it 
is  competent  for  the  same  authority,  or  his  proper  superior,  to 
name  another  day  for  the  purpose,  the  time  of  its  execution 
being  an  immaterial  element  of  this  punishment.-  Ill,  GoOj 
V,  22. 

'Compare  McXaghten,  120. 

^It  was  held  by  the  Supreme  Court  in  Coleman  v.  Ten- 
nessee, (7  Otto,  519-20,)  that  a  soldier  who  had  been  convicted 
of  murder  and  sentenced  to  death  by  a,  general  court  martial 
,in  May,  1865,  but  the  execution  of  whose  sentence  had  been 
meanwhile  deferred,  by  reason  of  his  escape  and  the  pend- 
ency of  civil  proceedings  in  his  case,  might  at  the  date  of 
the  ruling,  (October  Teim,  1878,)  "be  delivered  up  to  the 
military  authorities  of  the  United  States,  to  be  dealt  with  as 
recjuired  by  law." 

More  recently  (May,  1870,  XVI  Opins. — )  it  has  been  held 
in  this  case  by  the  Attorney-General  that  the  death  sentence 
might  legally  be  executed  notwithstanding  the  fact  that  the 
soldier  had  meanwhile  been  discharged  from  the  service; 
such  discharge,  while  formally  separating  the  party  from  the 
army,  being  viewed  as  not  affecting  his  legal  status  as  a  mili- 


80  ARTICLES  OF  WAR. 

KINETY-SEVENTH  AETIOLE. 

''No  person  in  the  military  service  shall,  under  the  sentence  of  a  court 
martial,  he  punished  by  confinement  in  a  penitentiary,  unless  the  offence 
of  which  he  may  be  convicted  would,  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or  District,  in  which 
such  offence  may  bo  committed,  or  by  the  common  law,  as  the  same 
exists  in  such  State,  Territory,  or  District,  subject  such  convict  to  such 
punishment." 

1.  This  Article,  by  necessary  implication,  proliibits  the 
imi:)Osition  of  confinement  in  a  penitentiary  as  a  punishment 
for  offences  of  a  purely  or  exclusively  military  character — as 
desertion  for  example.  ^  Y,  500;  YII,  538;  XXIII,  415; 
XXYIII,  12G;  XXIX,  250;  XXXI,  296;  XXXII,  255; 
XXXIII,  32,  175. 

2.  A  sentence  of  penitentiary  confinement  in  a  case  of  a 
purely  military  offence  is  wholly  unauthorized  and  should  be 
disapproved.  Effect  cannot  be  given  to  such  a  sentence  by 
commuting  it  to  confinement  in  a  military  jirison,  or  to  some 
other  punishment  which  would  be  legal  for  such  offence. 
XXIY,  202;  XXYII,  299;  XXX,  G03.  Xor,  in  a  case  of 
such  an  offence,  can  a  severer  penalty — as  death,  be  com- 
muted to  confinement  in  a  i^enitentiary.     XI,  413. 

3.  Xor  can  i^enitentiary  confinement  be  legalized  as  a  pun- 
ishment for  purely  military  offences  by  designating  a  peniten- 
tiary as  a  ''military  prison,"  and  ordering  the  confinement 
there  of  soldiers  sentenced  to  imprisonment  on  conviction  of 
such  offences.     XXXY,  377 ;  XXXIX,  059. 

4.  An  offence  charged  as  "Conduct  to  the  prejudice  of 
good  order  and  military  discipline,"  which,  however,  is  in  fact 
a  larceny,^   embezzlement,  violent   crime,  or  other  offence 

tary  convict.  But,  in  view  of  all  the  circumstances  of  the 
case,  it  was  recommended  that  the  sentence  be  commuted  to 
imprisonment  for  life  or  a  term  of  years. 

^  See  G.  O.  4,  War  Dept.,  18G7 ;  also  the  action  taken  in 
cases  in  the  following  General  Orders :  G.  O.  21,  Dept.  of  the 
Platte,  185G;  do.  21,  Id.,  1871;  do.  44,  Eighth  Army  Corps, 
18G2;  G.  C.  M.  O.  34,  35,  43,  4G,  72,  73,  Depf.  of  the  Missouri, 

i87(;. 

'  In  a  case  of  larceny^  the  court  should  inform  itself  as  to 
whether  the  value  of  the  property  stolen  be  not  too  small  to 
permit  of  penitentiary  confinement  for  the  offence  under  the 
local  law.  See  G.  O.  44,  Eighth  Army  Corps,  18G2 ;  G.  C.  M. 
O.  G3,  Dept.  of  the  Platte,  1872. 


ARTICLES  OF  WAK.  81 

made  punishable  with  penitentiary^  confinement  by  the  law 
of  the  State,  &c.,  may  legally  be  visited  with  this  punish- 
ment.    IX,  281. 

5.  The  term  '^  penitentiary,"  as  employed  in  this  Article, 
has  reference  to  civil  prisons  only — as  the  penitentiary  of  the 
Unit(  d  States  or  District  of  Columbia  at  Washington,  the 
l^ublic  prisons  or  penitentiories  of  the  different  States,  and 
the  penitentiaries  '^  erected  by  the  United  States,"  (see  Sec. 
1892,  Kev.  Sts.,)  in  most  of  the  Territories.  The  military 
prison  at  Leavenworth  is  not  a  penitentiary  in  the  sense  of 
the  Article.  XLI,  518.  The  term  State  or  State's  prison  in  a 
sentence  is  equivalent  to  penitentiary.     IX,  00. 

6.  A  military  prisoner  duly  sentenced  or  committed  to  a 
penitentiary,  becomes  subject  to  the  government  and  rules 
of  the  institution.     XXIX,  20G. 

7.  Where  a  soldier  is  sentenced  to  be  confined  in  a  peni- 
tentiary, the  proper  reviewing  authority  may  legally  desig- 
nate for  the  execution  of  the  punishment,  any  State  or 
Territorial  penitentiary  Avithin  his  command.  XXYIII,  52. 
Where  there  is  no  such  i^enitentiary  available  for  the  pur- 
pose, or  desirable  to  be  resorted  to,  he  will  i^roperly  submit 
the  case  to  the  Secretary  of  War  for  the  designation  of  a 
proper  penitentiary.     XXVI,  G72;  XXYIII,  0. 

8.  A  court  martial,  in  imposing  by  its  sentence  the  punish- 
ment of  confinement  in  a  penitentiary,  is  not  required  to 
follow  the  statute  of  the  United  States  or  of  the  State,  «S:c., 
as  to  the  term  of  the  confinement.  It  may  adjudge,  at  its 
discretion,  a  less  or  a  greater  term  than  that  affixed  by  such 
statute  to  the  particular  off'ence.  At  the  same  time  the  court 
will  often  do  well  to  consult  the  statute,  as  indicating  a  rea- 
sonable measure  of  punishment  for  the  offence.     XXVIII,  217. 

0.  Where  a  court-martial  specifically  sentences  an  accused 
to  confinement  in  a  "military  prison,"  he  cannot  legally  be 
committed  to  a  penitentiarj^,  although  such  form  of  imi)rison- 
ment  would  be  authorized  by  the  character  of  his  offence. 
XXIX,'  250.  But  where  a  sentence  of  confinement  is  ex- 
pressed in  general  terms,  as  where  it  directs  that  the  accused 
shall  be  confined  'in  such  place  or  prison  as  the  proper 
authority  may  order,'  or  in  terms  to  such  effect,  held  that  the 
same  may,  under  this  Article,  legally  be  executed  by  the 
6d 


82  ARTICLES  OF  WAR. 

commitment  of  tlie  party  to  a  'penitentiary^  to  be  designated 
by  tlie  reviewing  officer  or  Secretary  of  War,  i^rovided  of 
course  the  offence  is  of  such  a  nature  as  to  warrant  this  form 
of  punishment.    XLI,  004^  XLII,  218. 

NINETY-OTNTH  AETICLE. 

"No  officer  sliall  be  discliarged  or  dismissed  from  the  service,  except 
by  order  of  tlie  President,  or  by  sentence  of  a  general  court-martial ;  and 
in  time  of  peace  no  officer  shall  be  dismissed,  except  in  pursuance  of  the 
sentence  of  a  court  martial*  or  in  mitigation  thereof." 
See  dismissal,  I,  II. 

ONE  HUNDREDTH  ARTICLE. 

"When  an  officer  is  dismissed  from  the  service  for  cowardice  or  fraud, 
the  sentence  shall  further  direct  that  the  crime,  punishment,  name,  and 
place  of  abode  of  the  delinquent  shall  be  published  in  the  newspapers  in 
and  about  the  camp,  and  in  the  State  from  which  the  offender  came,  or 
where  he  usually  resides;  and  after  such  publication  it  shall  be  scandal- 
ous for  an  officer  to  associate  with  him." 

1.  The  terms  '''-cowardice'''^  and  '^/mif(^,"  employed  in  this 
Article,  may  be  considered  as  referring  mainly  to  the  offences 
made  punishable  by  Articles  42  and  GO.  With  these,  however, 
may  be  regarded  as  included  all  offences  in  which  fraud  or 
cowardice  is  necessarily  involved^  though  the  same  be  not  ex- 
pressed in  terms  in  the  charge  or  specification.    XI,  671. 

2.  Though  the  injunction  of  the  Article,  as  to  the  direction 
to  be  added  in  the  sentence,  should  of  course  regularly  be 
complied  with,  a  failure  so  to  comx)ly  will  not  affect  the  valid- 
ity of  the  punishment  of  dismissal  adjudged  by  the  sentence.^ 
The  declaration  of  the  Article,  that  after  the  publication,  "it 
shall  be  scandalous  for  an  officer  to  associate  with"  the  dis- 
missed officer,  though  it  has  in  a  few  cases^  been  incorporated 
in  the  sentence,  is  not  intended  to  be,  and  should  not  be,  so 
expressed  by  the  Court.    XXII,  508 ;  XXVII,  052. 

OXE  HUNDRED  AXD  FIRST  ARTICLE. 

"When  a  court  martial  suspends  an  officer  from  command,  it  may  also 
suspend  his  pay  and  emoluments  for  the  same  time,  according  to  the 
nature  of  his  ofience." 

See  suspension. 

^  Note  the  action  taken  in  the  case  published  in  G.  C.  M.  O. 
27,  War  Dept.  1872. 

2  As  in  cases  published  in  G.  O.,  (A.  &.  I.  G.  O.,)  of  May 
13,  1820  J  do.  108,  Dept.  of  the  Missouri,  1805. 


ARTICLES   OF   WAR.  83 

OKE  HimDEED  AND  SECOND  xVETICLE. 

"Xo  person  shall  be  tried  a  second  time  for  the  Kame  ofifence." 

The  Constitutiou,  (Art.  Y  of  tlie  Amendments,)  declares 
that  "no  person  shall  be  subjected,  for  the  same  offence,  to 
be  twice  put  m  jeopardy  of  life  or  limb."  The  U.  S.  Courts, 
in  treating  the  term  "  put  in  jeoi)ardy  "  as  meaning  i^ractically 
tried,  hold  that  the  "jeopardy"  indicated  "  can  be  interpreted 
to  mean  nothing  short  of  the  acquittal  or  conviction  of  the 
prisoner  and  the  judgment  of  the  court  thereon.^  So,  held 
that  the  term  "  tried,"  emi^loyed  in  this  Article,  meant  duly 
prosecuted,  before  a  court-martial,  to  a  final  conviction  or  acquit- 
tal; and,  therefore,  that  an  officer  or  soldier,  after  having 
been  duly  convicted  or  acquitted  by  sucli  a  court,  could  not 
be  subjected  to  a  second  military  trial  for  the  same  offence, 
except  by  and  upon  his  own  waiver  and  consent.  For,  that 
the  accused  may  tvaive  objection  to  a  second  trial  was  held 
by  Attorney-General  Wirt  in  1818,-  and  has  since  been  re- 
garded as  settled  law.  Y,  272 ;  YI,  02 ;  YIII,  37.  [See  New 
Trial.] 

2.  Where  an  officer  or  soldier  has  been  duly  acquitted  or 
convicted  of  a  specific  offence,  he  cannot,  against  his  consent, 
be  brought  to  trial  for  a  minor  offence  included  therein,  and 
an  acquittal  or  conviction  of  w^hich  was  necessarily  involved 
in  the  finding  upon  the  original  charge.  [See  Desertion 
§  18 ',  Findings  §  8.]  Thus  a  party  convicted  or  acquitted  of 
a  desertion  cannot  afterwards  be  brought  to  trial  for  an 
absence  without  leave  committed  in  and  by  the  same  act. 
XXX,  386,  039. 

3.  Held  that  there  was  no  "second"  trial,  in  the  sense  of 
the  Article,  in  the  following  cases :  Where  the  party,  after 
being  arraigned  or  tried  before  a  court  which  was  illegally 
constituted  or  composed,  or  w^as  without  jurisdiction,  was 
again  brought  to  trial  before  a  competent  tribunal.  IX,  201  j 
XYIII,  211;  XXYIII,  OS:  Where  the  accused, having  been 
arraigned  n\)Oii  and  having  pleaded  to  certain  charges,  was 
re-arraigned  upon  a  new  set  of  charges  substituted  for  the 

^United  States  v.  Haskell,  1  Wash.  C.  C.  409.  And  see 
United  States  r.  Shoemaker,  2  McLean,  111;  United  States  v. 
Gibert,  2  Sumner,  19 ;  United  States  v.  Perez,  9  Wheaton, 
579 ;  I  Opins.  of  Attvs.  Gen.  291. 

2 1  Opins.  of  Attys.  Gen.  233.     And  see  also  YI  Id.  205. 


84  ARTIGILES  OF  WAR. 

otliers  which  were  withdrawn.  XIX,  222:  Where  one  of 
several  distinct  charges  upon  which  the  accused  had  been 
arraigned  was  withdrawn  pending  the  trial,  and  the  ac- 
cused, after  a  trial  and  finding  by  the  court  upon  the  other 
charges,  was  brought  to  trial  anew  upon  the  charge  thus 
withdrawn.  Y.  213 :  Where,  after  proceedings  commenced 
but  discontinued  without  a  finding,  the  accused  was  brought 
to  trial  anew  upon  the  same  charge.  Y,  192 :  Where,  after 
having  been  acquitted  or  convicted  ui^on  a  certain  charge 
which  did  not  in  fact  state  the  real  offence  committed,  the 
accused  was  brought  to  trial  for  the  same  act  but  upon  a 
charge  setting  forth  the  true  offence.  XXY,  670  -,  XXYII, 
60-1:  Where  the  accused  was  brought  to  trial  after  having 
had  his  case  fully  investigated  by  a  different  court,  which  how- 
ever failed  to  agree  in  a  finding  and  was  consequently  dis- 
solved.^ XXY,  73:  Where  the  first  court  was  dissolved 
because  reduced  below  five  members  by  the  casualities  of  the 
service  pending  the  trial.  YI,  62 :  Where,  for  any  cause,  there 
was  a  ^' mis-trial,"  or  the  trial  first  entered  upon  was  termi- 
nated at  any  stage  of  the  proceedings  before  a  final  acquittal 
or  conviction.     Y,  192. 

4.  Where  an  officer  or  soldier,  having  been  acquitted  or 
convicted  of  a  criminal  offence  by  a  civil  court,  is  brought  to 
trial  by  a  court-martial  for  a  military  offence  involved  in  his 
criminal  act,  he  cannot  plead  a  ''former  irial,"  in  the  sense  of 
this  Article.  So  where  the  trial  for  the  military  offence  has 
preceded,  he  cannot  plead  autrefois  acquit  or  convict  to  an 
indictment  for  the  civil  crime  committed  in  and  by  the  same 
act.2    Y,  140.    [See  Court  Martial,  II  §  12.] 

5.  But  where  the  accused  has  been  once  duly  convicted  or 
acquitted,  he  has  been  ''  tried  "  in  the  sense  of  the  Article, 
and  cannot  be  tried  again,  against  his  will,  though  no  action 
whatever  be  taken  upon  the  proceedings  by  the  reviewing 
authority,  XXXI,  300 ;  or,  though  the  i^roceedings,  findings, 
(and  sentence,  if  any,)  be  wholly  disapproved  by  him.^  IX, 
611 J  XXYII,  348  J  XXXYIII,  38. 

^See  United  States  ?;.  Perez,  9  Wheat.,  579. 

^  See  YI  Opins.  of  Attys.  Gen.,  413,  506,  and  other  authori- 
ties cited  in  note  to  Court-Martial,  II  §  12. 

HJompare  Macomb,  §  159  j  O'Brien,  277  j  Eules  for  Bombay 
Army,  45. 


ARTICLES  OF  WAR.  85 

G.  That  an  accused  lias  been,  in  the  opinion  of  the  review- 
ing anthorit}^,  inadequately  sentenced,,  either  by  a  general  or  an 
inferior  conrt,  cannot  except  his  case  from  the  application  of 
this  Article:  though  insufiaciently  punished,  he  cannot  be 
tried  again  lor  the  saDie  offence.    YII,  17  j  XXVIII,  69. 

ONE  HUNDRED  AND  THIRD  ARTICLE. 

*'No  person  shall  be  liable  to  be  tried  and  punislied  by  a  general  court- 
martial  for  any  offence  wliicli  appears  to  have  been  committed  more  than 
two  years  before  the  issuing  of  the  order  for  such  trial,  unless,  by  reason 
of  having  absented  himself,  or  of  some  other  manifest  imijediment,  he 
shall  not  have  been  amenable  to  justice  within  that  period." 

1.  It  has  repeatedly  been  held  by  the  Judge  Advocate  Gen- 
eral that  the  limitation  prescribed  by  this  Article  api^lied 
alike  to  all  prosecutions,  including  those  for  desertion  equally 
with  those  for  other  military  offences.  In  the  absence  of  any 
authoritative  interpretation  of  the  Article,  it  was  further 
held  by  him  that  in  cases  of  desertion  the  i^eriod  of  limitation 
began  to  run  from  the  day  on  which  the  deserter  absented 
himself  without  authority.^ 

^  That  the  Article  applies  to  and  includes  cases  of  desertion^ 
though  questioned  by  some  military  authorities,  has  been 
uniformly  held  by  the  Attorney  General.  See  XIII  Opins. 
of  Attvs.  Gen.  402;  XIY  Id.  265;  Opinions  of  September  1, 
1876,  (XV  Opins.  — ,)  and  October  16,  1878,  (XVI  .Opins.  — .) 
In  the  latter  opinions,  however,  it  was  held  that  the  i)eriod 
of  the  limitation  in  such  cases — desertion  being  regarded  as 
a  continuing  offence — began  to  run,  not  from  the  date  of  the 
commission  of  the  offence,  but  from  that  of  the  end  of  the 
term  for  which  the  soldier  had  enlisted,  (or,  if  he  was  appre- 
iieuded  or  surrencl^red  himself  prior  to  that  time,  from  the 
date  of  the  arrest  or  surrender.) 

The  construction  of  the  Article,  in  which  the  Attorney 
General  and  Judge  Advocate  General  unite,  that  the  offence 
of  desertion  is  not  intended  to  be  excepted  from  its  provisions, 
is  certainly,  as  it  is  expressed  by  the  latter  in  his  official  re- 
port to  the  Secretary  of  War,  of  Oct.  10,  1877,  in  accord  with 
"  the  enlightened  spirit  of  modern  criminal  codes.  It  is,"  con- 
tinues that  ofdcer,  ''  a  general  principle  of  all  these  codes  that 
the  State  shall  prosecute  offenders  within  a  reasonable  time, 
or  be  barred  therefrom ;  that  to  hold  at  will  over  the  party 
the  menace  of  punishment,  keeping  him  constantly  in  sus- 
pense without  proceeding  to  briug  him  to  justice  or  afford 
him  the  opportunity  of  a  judicial  exculpation,  is  contrary-  to 
public  policy,  unworthy  the  dignit}'  of  the  Government  and 
cruel." 

But  in  view  of  the  doubt  that  has  sometimes  been  enter- 


86  ARTICLES   OF  WAR. 

2.  Uuder  tliis  Article  it  lias  also  been  held  by  tlie  Judge 
Advocate  General,  in  a  great  number  of  cases,  that  mere 
absence  alone  is  not  an  '^  impediment,"  in  the  sense  of  the 
Article,  and  that  a  mere  general  averment  in  the  specification 
to  the  effect  that  because  of  his  absence  the  party  has  not 
been  amenable  to  justice  duriug  the  interval,  is  a  wholly  in- 
sufficient allegation  of  an  imi)ediment  j  further,  that  absence, 
to  constitute  an  imi)ediment,  must  be  such  an  absence  as  ren- 
ders it  impracticable  for  the  military  authorities,  by  the  use 
of  due  and  reasonable  diligence,  to  bring  the  offender  to  jus- 
tice during  the  prescribed  period^ — as,  for  example,  an  absence 
ill  a  foreign  country  and  therefore  beyond  the  jurisdiction  of 
a  court-martial  j  that  the  facts  constituting  the  imiiediment 
must  be  specifically  set  forth  in  the  specification,  a  general 
averment  not  being  sufficient,  and  must  be  proved  as  laid  j  and 
further  that  where  it  appears  from  the  specification,  or  from 
the  evidence,  that  more  than  two  years  have  elapsed  between 
the  date  of  the  commission  of  the  alleged  offence  and  that  of 
the  ^'  issuing  of  the  order''  for  the  trial,  and  it  is  not  j) roved  by 
the  United  States  that,  by  reason  of  some  manifest  imj)ediment 
the  party  has  not  been  '^  amenable  to  justice  within  that  pe- 
riod," the  proceedings  and  sentence  must  be  held  void  and 
inoperative,  even  if  the  accused  has  pleaded  (juilty^  such  a  plea 
not  availing  to  give  the  court  jurisdiction.^  That  the  limitation 
cannot  be  waived  by  the  accused,  see  §  8,  infra. 

3.  The  following  have  been  held  to  be ''manifest  impedi- 

tained  as  to  the  proper  interpretion  of  the  Article,  and  in 
order  that  our  military  code  shall  be  placed  unmistakeably 
in  harmony  with  the  principle  thus  indicated,  the  Judge  Ad- 
vocate General  has  heretofore  recommended  an  amendment 
of  the  Article  which  should  remove  any  possible  question  as 
to  its  application  to  cases  of  desertion,  while  at  the  same  time 
extending  and  defining  the  limitation  of  prosecutions  for  that 
offence.  This  recommendation,  having  been  approved  by  the 
Secretary  of  War,  has  been  favorably  acted  upon  by  the 
Senate,  which  has  twice  passed  a  bill  amending  the  103d  Arti- 
cle in  the  manner  x)roposed  and  fixing  the  iieriod  of  limitation  in 
the  case  of  desertion  at  three  years.  Such  a  bill  is  now  pending 
for  final  action  in  the  House  of  Representatives,  having  been 
favorably  reported  for  passage  by  the  Military  Committee. 

^  See  to  a  similar  effect,  the  opinions  of  the  Attorney  Gen- 
eral of  Sei)tember  1,  1870,  and  October  10, 1878,  noted  supra. 

^  Similarly  held  by  the  Attorney  General  in  his  opinion  of 
Oct.  10, 1878,  noted  mpra. 


ARTICLES  OF  WAR.  87 

meiits"  in  the  sense  of  the  Article : — Absence  from  the  United 
States  as  a  fngitive  from  civil  justice.  XXXI,  27  :  Absence 
from  the  United  States  originally  by  authority  but  protracted 
by  reason  of  detention  by  the  authorities  of  the  country  of 
which  the  soklier  was  a  native.  XXXVII,  576 :  Any  absence 
from  the  United  States  during  such  a  proportion  of  the  in- 
terval since  the  commission  of  the  offence  as  to  leave  less 
than  two  years  during  which  the  party  was  in  this  country 
and  amenable  to  justice.  XXXVII,  479:  Arrest  and  con-, 
finement  by  the  civil  authorities  of  the  United  States,  or  of  a 
State,  &c.,  under  a  charge  or  upon  a  conviction  of  a  civil 
offence,  where  the  party  has  not  been  discharged  from  such 
confinement  within  two  years  x)rior  to  the  order  convening 
the  court-martial.  XXXIV,  158;  XXXVII,  590:  Detention 
as  a  prisoner  of  war  or  in  the  compulsory  service  of  the 
enemy  during  the  interval,  (a  brief  period  only  excepted,)  of 
the  absence.     XXIII,  18. 

4.  In  the  following  cases  it  was  held  that  no  impediment  had 
existed : — Where  the  soldier,  subsequently  to  his  desertion, 
re-enlisted  under  a  different  name,  in  another  regiment,  and 
was  thus,  (within  two  years,)  manifestly  within  reach  of  the 
military  authorities  and  amenable  to  justice.^  XXXVI,  553 : 
Where,  under  similar  circumstances,  the  party  enlisted  in  the 
U.  S.  marine  corps  and  thus  came  within  the  immediate  con- 
trol and  reach  of  the  authorities.^  XXXV,  511 :  Where  a 
soldier,  though  arrested  by  the  civil  authorities  for  a  civil 
offence,  was  not  in  fact  held  by  them  but,  in  the  absence  of 
a  convenient  civil  prison,  was  left  in  military  charge  and  cus- 
tody at  a  military  post,  with  the  assent  of  the  commander, 
for  more  than  two  years.     XLII,  183. 

5.  The  mere  fact  that  the  offence  was  concealed  by  the 
accused  and  remained  unknown  to  the  military  authorities 
for  more  than  two  years,  constitutes  no  "impediment"  in  the 
sense  of  the  Article.^    XXI,  GSij. 

6.  A  mere  allegation  in  a  specification,  to  the  effect  that 
the  whereabouts  of  the  offender  was  unknown  to  the  military 
authorities  during  the  interval  of  more  than  two  years  which 

*  See  the  like  case  of  Harris,  in  XIV  Opins.  of  Attys.  Gen., 
265. 

-  See  this  opinion  as  adopted  by  the  Secretary  of  War  in 
G.  C.  M.  O.  63,  War  Dept.,  1874. 

3  XIV  Opins.  of  Attys.  Gen.,  52,  266-8. 


8S  ARTICLES  OF  WAR. 

had  elapsed  since  the  offence,  is  not  a  good  averment  of  a 
"  manifest  impediment "  in  the  sense  of  the  Article.  XXXY, 
640. 

7.  An  officer  or  soldier  cannot  of  course  legally  be  arrested 
with  a  view  to  trial,  where  more  than  two  years,  (within  which 
he  has  been  amenable  to  justice,)  have  elapsed  since  his 
offence.    XLII,  130. 

8.  The  ruling  of  Attorney  General  Wirt,  in  1820,^  that 
where  the  limitation  prescribed  by  this  Article  has  once 
duly  taken  effect,  an  accused  party  cannot  waive  it,  or  legally 
be  brought  to  trial  though  desiring  and  applying  for  a  trial, 
has  been  held  applicable  in  repeated  cases  by  the  Judge 
Advocate  General,  and  has  been  invariably  followed  in  our 
practice.     XXVIII,  34  ;  XLII,  213. 

9.  The  liability  to  trial  after  discharge,  imposed  by  the  last 
clause  of  Art.  60,  held  subject  to  the  limitation  i^rescribed  in 
Art  103.'  XII,  481,  536  -,  XY,  133 ;  XXI,  4  -,  XXVI,  670. 
And  so  held  as  to  the  liability  to  trial  after  the  expiration  of 
the  term  of  enlistment,  under  Art.  48.^    XXXI,  384. 

10.  The'i^rohibition  of  the  Article  relates  only  to  i)rosecu- 
tions  before  general  courts  martial:  it  does  not  apply  to 
trials  by  inferior  courts.  So,  courts  of  inquiry  may  be  con- 
vened without  regard  to  the  i^eriod  which  has  elaxjsed  since 
the  date  or  dates  of  the  act  or  acts  to  be  investigated.*  XLII, 
213.  Xor  does  the  rule  of  limitation  ap^dy  to  the  hearing  of 
cojnplaints  by  regimental  courts  under  Art  30.  XXXI,  452. 
[But  see  Thirtieth  Article  §  2.J 

1 1  Opins.  383,  affirmed  by  Atty.  Gen.  Gushing  in  VI  Opins. 
239.  The  ground  of  the  ruling  was  that  the  provision  of  the 
Article  was  intended,  not  merely  for  the  benefit  of  the  accused, 
but  to  ensure  the  prompt  prosecution  of  offences  Avith  a  view 
to  the  better  security  and  maintenance  of  military  discii)line, 
and  being  thus  based  upon  considerations  of  xjiiblic  policy, 
its  operation  could  not  be  waived  by  an  accusecl  i)arty  in  his 
own  case. 

Xote,  in  this  connection,  the  opposite  ruling  of  the  same 
authoi'ity,  in  regard  to  the  waiver  of  objection  to  a  second 
trial,  cited  under  One  Hundred  and  second  Article  §  1. 

'-^XIV  Opins.  of  Attys.  Gen.  52. 

^See,  to  a  similar  effect,  XIII  Ojuns.  of  Attys.  Gen.  462, 
and  Oi^ins.  of  Sei)t ember  1, 1876,  and  October  16, 1878,  noted 
siipra  ;  also  In  re  Bird,  2  Sawyer,  oo. 

*  See  VI  Opins.  of  Attys.  Gen.,  239. 


ARTICLES  OF  WAR.  89 

o:n^e  hundred  and  fourth  article. 

"No  sentence  of  a  court-martial  shall  Ije  carried  iuto  execution  until 
the  whole  proceedings  shall  have  been  approved  by  the  officer  ordering 
the  court,  or  by  the  officer  commanding  for  the  time  being." 

1.  This  provision,  taken  from  the  old  G5th  Article,  is,  in  its 
.present  form,  inaccurately  expressed.    It  is  rarely  necessary 

that  tlie  entire  proceedings  of  a  court  should  be  approved  to 
give  eii'ect  to  the  sentence.  The  term  "whole  proceedings" 
is  thus  construed  as  meaning  the  material  proceedings,  i.  e., 
the  i)roceedings  necessary  to  the  validity  of  the  sentence  or 
such  part  of  it  as  is  api^roved.  XXXIX,  2(35;  XL,  77; 
XLIII,  14. 

2.  This  Article  is  properly  to  be  complied  with  by  an  ap- 
l)roval  of  the  proceedings,  (where  the  same  are  approved  in 
fact,)  by  "  the  officer  ordering  the  court,"  «&c.,  although — as 
in  a  case  of  a  sentence  of  dismissal  in  time  of  peace — he  may 
not  be  emi)owered  finally  to  confirm  and  give  effect  to  the 
sentence.  His  approval  is  required  as  showing  that  he  does 
not,  as  he  is  authorized  to  do,  disapprove.  IX,  15 ;  XXIII, 
451.    [See  Reviewing  Aithoeity  §  2.] 

3.  The  approval  of  the  proceedings  indicated  by  this  Arti- 
cle should  properly  be  of  2i  formal  character.  An  endorse- 
ment, signed  by  the  commander,  of  the  single  word  "  Ap- 
I)roved," — a  form  not  unfrequently  employed  during  the  late 
war, — though,  strictly,  sufficient  in  law,  (XXVI,  511,)  is 
irregular  and  objectionable.  So,  held  that  a  mere  statement, 
written  in  or  uj^on  the  proceedings,  in  transmitting  them  to 
the  President,  that  the  record  was  ''  forwarded ''  for  the  action 
of  superior  authority,  was  insufficient  as  not  imi:>lying  the 
requisite  approval  according  to  the  Article.  II,  99 ;  VII,  476. 
And  similarly  licJd  of  a  mere  recommendation  that  the  pro- 
ceedings be  api)roved  by  such  authority.  IX,  50,  54.  [See 
Reviewing  Authority  §  2.] 

4.  Held  that  a  department  commander,  while  detciched  and 
absent  for  any  considerable  period,  on  leave  of  absence,  or 
under  orders,  fi'om  his  department  and  command,  was  not 
authorized  to  approve,  &c.,  the  i^roceedings  of  a  general  court 
martial  previously  convened  by  him  while  dulj'  exercising  his 
command  ;  but  that  the  same  could  legally  be  approved  only 
by  an  officer  duly  assigned  or  acting  as  dei)artment  com- 
mander "for  the  time  being,"  or  by  the  original  commander 


90  •      ARTICLES   OF  WAR. 

liimself  upon  bis  returning  to  the  department  and  re-assum- 
ing the  command.  XXXIX,  328,  35G  5  XL,  78 ;  XLI,  157  ; 
XLII,  272.1  [See  Seventy-second  Article  §  5.] 

5.  Held  that  a  department  commander  could  not  legally 
depute  a  staff  or  other  officer  to  act  for  him,  while  absent 
from  his  headquarters  on  an  expedition  against  Indians,  in 
approving,  &c.,  the  x^roceedings  of  courts-martial  previously 
duly  convened  by  him.    XXXVII,  429. 

G.  The  ''officer  commanding  for  the  time  being,"  indicated 
in  this  Article,  is  an  officer  who  has  permanently  or  temi)o- 
raiily  succeeded  to  the  command  of  the  officer  who  convened 
the  court ;  as  where  the  latter  has  been  regularly  relieved 
and  another  officer  assigned  to  the  command ;  or  where,  by 
reason  of  the  temporary  absence  of  the  regular  commander, 
the  command  has  devolved  ux)on  the  next  senior  officer  5  or 
where  the  command  of  the  convening  officer  has  been  discon- 
tinued, and  merged  in  a  larger  or  other  command,  at  some  time 
before  the  proceedings  of  the  court  are  completed  and  require 
to  be  acted  upon.  Thus,  where,  under  these  circumstances, 
a  separate  brigade  has  ceased  to  exist  as  a  distinctive  organ- 
ization and  been  merged  in  a  division,  or  a  division  has  been 
similarly  merged  in  an  army  or  department,  the  commander 
of  the  division  in  the  one  case  and  of  the  army  or  department 
in  the  other,  is  "  the  officer  comnmnding  for  the  time  being," 
in  the  sense  of  the  Article.  YIII,  G33;  IX,  G2I5  XIII,  298  5 
XX,  153, 191.  So  where,  before  the  proceedings  of  a  garrison 
court  convened  by  a  post  commander  were  comi^leted,  the 
post  command  had  ceased  to  exist,  and  the  command  become 
distributed  in  the  department,  held  that  the  department  com- 
mander, as  the  legal  successor  of  the  post  commander,  was 
the  proper  authority  to  ai)prove  the  i^roceedings  under  this 
Article.     XLII,  48. 

7.  Where  a  dei)artment  command  was  discontinued,  with- 
out being  transferred  to  or  included  in  any  other  specific 
command,  held  that  the  General  in  command  of  the  Army 
was  "  the  officer  commanding  for  the  time  being,"  and  the 
IDroper  authority  to  act,  under  this  Article  and  the  109th, 
upon  the  proceedings  and  sentence  of  a  court  which  had  been 
ordered  by  the  dei)artment  commander  but  whose  judgment 
had  not  been  completed  at  the  time  of  the  discontinuance  of 
the  command.     XXXII,  49G. 

"  » See  G.  C.  M.  O.  26,  Hdqrs.  of  Army,  1878. 


ARTICLES   OF  WAR.  91 

8.  Unlike  Art.  72,  wliicli,  iu  designating  what  officers  shall 
be  authorized  to  order  general  conrts-martial,  specifies  that 
they  shall  be  general  officers,  neither  Art.  104  nor  Art.  109 
X)rescribes  that  "the  officer  commanding  for  the  time  being '^ 
shall  be  an  officer  of  any  i^articular  rank.  So  held  that  a 
colonel  assigned  to  command  a  department  during  the  tempo- 
rary absence  of  the  general  commanding,  though  he  would 
not  be  authorized  to  convene  general  courts,  was  legally  author- 
ized to  act  upon  and  ai:)prove  the  proceedings  of  such  courts 
previously  assembled  by  the  general,  and  to  order  the  execu- 
tion of  their  sentences.    XXXVIII,  15G. 

ONE  HUNDEED  AND  SIXTH  AETICLE. 

''  In  time  of  peace  no  sentence  of  a  conrt-martial  directing  the  dismissal 
of  an  officer,  shall  be  carried  into  execntion,  until  it  shall  have  been  con- 
firmed by  the  President." 

1.  The  word  "  ai^proved,"  employed  by  the  President  in 
passing  upon  a  sentence  of  dismissal,  held  to  be  substantially 
equivalent  to  "  confirmed,"  the  word  used  in  the  Article.  In 
practice  the  two  words  are  used  indifferently  in  this  connec- 
tion.    XLI,  12. 

2.  The  Article  does  not  require  that  the  confirmation  of  the 
sentence  shall  be  signed  by  the  President,  nor  does  it  pre- 
scribe any  form  in  which  the  confirmation  shall  be  declared. 
Eeld^  tlierefore,  that  a  written  approval  of  a  sentence  of  dis- 
missal authenticated  by  the  signature  of  the  Secretary  of 
War  or  exiDressed  to  be  by  his  order,  was  a  sufficient  con- 
firmation within  the  Article ;  the  case  being  deemed  to  be 
governed  by  the  well-established  principle  that  where,  to  give 
effect  to  an  executive  proceeding,  the  personal  signature  of 
the  President  is  not  made  essential  by  law,  that  of  the  head 
of  the  department  to  which  the  subject  belongs  shall  be  sufll- 
cient  for  the  purpose  j  the  assent  of  the  President  to  his  order 
or  direction  being  presumed,  and  his  act  being  deemed  in  law 
the  act  of  the  President   whom   he  represents.^    IX,  44; 


^  This  view  has  been  sustained  by  an  opinion  of  the  Attor- 
ney General  of  June  0, 1877,  (XV  Opins.,  — ,)  and  by  a  Eeport 
of  the  Judiciary  Committee  of  the  Senate  of  March  3, 1879, — 
Eep.  Xo.  808,  45th  Cong.,  od  Ses.  [From  this  report,  indeed, 
two  members  of  the  Committee  dissented  in  a  subsequent 
report  of  April  7,  1879,— Mis.  Doc.  Xo.  21,  4Gth  Cong.  1st 
Ses.]     All  official  confirmations,  however,  of  sentences  of  dis- 


02  ARTICLES  OF  WAR. 

XXIII,  G54;  XXXYII,  G50;  XXXVIII,  107,  243;  XXXIX, 
296;  XLI,  25;  XLII,  209;  XLIII,  106.  [See  Secretary  of 
War.] 

OXE  HUNDRED  AND  XIXTH  ARTICLE. 

''All  sentences  of  a  court-martial  may  be  confirmed  and  carried  into 
execution  by  the  officer  ordering  the  court,  or  by  the  officer  commanding 
for  the  time  being,  where  confirmation  by  the  President,  or  by  the  com- 
manding general  in  the  field,  or  commander  of  the  dej^artment,  is  not 
required  by  these  articles." 

See  one  HUNDRED  AND  FOURTH  ARTICLE,  ^  7,  8. 

ONE  HUNDRED  AND  ELEVENTH  ARTICLE. 

''Any  officer  who  has  authority  to  carry  into  execution  the  sentence  of 
death,  or  of  dismissal  of  an  officer,  may  suspend  the  same  until  the  pleasure 
of  the  President  shall  be  known;  and  in  such  case,  he  shall  immediately 
transmit  to  the  President  a  copy  of  the  order  of  suspension,  together  with 
a  copy  of  the  proceedings  of  the  court." 

1.  All  officer  suspending  the  execution  of  a  sentence  for 
the  action  of  the  President  under  this  Article  should  first 
formally  approve  the  same.  Simply  to  forward  the  proceed- 
ings stating  that  the  sentence  has  been  suspended,  is  incom- 
jilete  and  irregular.  lY,  337;  IX,  15.  If  the  commander 
disapproves  the  sentence,  he  cannot  of  course  suspend  and 
transmit  under  this  Article,  since  there  remains  nothing  for 
the  President  to  act  upon.     II,  50. 

2.  Where  a  case  is  submitted  to  the  President  for  his  action 
under  this  Article,  he  may  approve  or  disapprove  the  sentence 
in  whole  or  in  part,  and,  if  ai)i)roving,  may  exercise  the  power 
of  remission  or  mitigation.     Ill,  402  ,•  YII,  594. 

ONE  HUNDRED  AND  TWELFTH  ARTICLE. 

"  Every  officer  who  is  authorized  to  order  a  general  court-martial  shall 
have  power  to  pardon  or  mitigate  any  x^unishment  adjudged  by  it,  except 

missal,  approved  by  the  present  President,  have  been  for- 
mally signed  by  him  in  person — a  proceeding  which,  while 
importiug  an  api>ropriate  gravity  and  solemnity,  certainly 
conforms  most  strictly  to  the  iiijunction  of  the  Article. 

In  a  recent  opinion  of  the  Attorney  General  of  April  1, 
1879,  (XVI  Opins.,  — ,)  it  has  been  held  that  a  confirmation 
of  a  sentence  of  dismissal  of  an  officer,  though  irregidarly  and 
unduly  authenticated,  would  be  ratified  by  an  ai)])ointment  by 
the  President  of  another  officer  to  fill  the  supposed  vjicaucy, 
and  that  the  appointment  thus  made  w^ould  be  valid  and 
oi)erative. 


ARTICLES   OF  WAR.  93 

tlie  pnni.slim?iit  of  deatli  or  of  dismissal  of  an  officer.  Every  officer  com- 
maiidiug  a  regiment  or  garrison  in  which  a  regimental  or  garrison  court- 
martial  may  be  held,  shall  have  power  to  pardon  or  mitigate  any  punish- 
ment which  such  court  may  adjudge." 

1.  The  power  to  reuiit  or  commute,  (see  §  5,  infra,)  sentences 
of  death  and  dismissal  is  reserved  by  this  Article  for  the 
President.  A  mil  itary  commander  cannot  exercise  such  power, 
even  where,  in  time  of  war,  he  is  authorized  to  approve  and 
execute  the  sentence.  He  may  then,  however,  if  lie  thinks 
that  the  sentence  should  be  remitted  or  commuted,  suspend 
its  execution  for  the  action  of  the  President,  (with  a  recom- 
mendation to  clemency,)  under  the  preceding  Article.^     II,  07. 

2.  A  military  commander  vested  with  the  i^ower  of  i)ardou 
or  mitigation  under  this  Article  is  not  authorized  to  delegate 
the  same  to  an  inferior.  Thus  lield  that  a  department  com- 
mander could  not  legally  authorize  a  i^ost  commander  to  remit 
in  part,  upon  good  behavior,  the  punishment  of  a  soldier 
under  sentence  at  the  post  of  the  latter,  who  had  been  con- 
victed by  a  general  court,  convened,  and  whose  proceedings 
had  been  acted  upon,  by  the  former.    XXXIII,  119. 

3.  A  x)nnishment  cannot  be  pardoned  or  mitigated  under 
this  Article  where  it  has  been  once  duly  executed.  [See 
Pardon  §  1.]  Where,  however,  a  sentence  has  been  executed 
only  in  part,  it  may  be  remitted  as  to  the  portion  remaining 
unexecuted.     II,  29. 

4.  The  pardoning  power  here  given  is  not  limited  in  its 
exercise  to  the  moment  of  the  approving  of  the  sentence,  but 
may  be  emi^loyed  as  long  as  there  remains  any  material  for  its 
exercise.  Under  this  Article,  as  interpreted  by  the  usage  of 
the  service,  a  department,  (or  army,)  commander  may  remit 
at  any  time,  in  his  discretion,  for  any  cause  deemed  by  him  to 
be  sufficient,  the  unexecuted  portion  of  the  sentence  of  any 
soldier  confined  in  his  command  under  a  sentence  imposed  by 
a  court-martial  convened  by  him  or  by  a  predecessor  in  the 
command.  Y,  71;  VI,  35  ;  VIII,  582  ;  XXI,  49 ;  XXIII,  286; 
XXVI,  403;  XXVII,  243.  [See  Pardon  §  4,  note.]  At 
present,  however,  when  the  great  mass  of  military  convicts 
is  confined  at  the  Leavenworth  prison,  (or  at  Alcatraz  Island,) 
this  authority  is  much  less  frequently  exercised  than  during  the 
late  war;  the  greater  i)art  of  the  remissions  of  sentences 


'  See  VI  Opins.  of  Attys.  Gen.  124-5. 


94  ARTICLES  OF  WAR. 

being  now  made  by  tlie  President  in  orders  from  the  War 
Department.  [As  to  the  effect  of  remission  as  distingnished 
from  full  pardon,  see  Pardon  §  2 ;  Eemission.] 

5.  The  power  to  ^'pardon"  conferred  by  this  Article  in- 
cludes the  i)ower  to  commute^  commutation  being  a  form  of 
conditional  jmrdon.^  A  punishment  which  is  of  such  a  nature 
that  it  cannot  be  reduced  in  degree,  i.  e.,  mitigated^  must, 
where  deemed  too  severe,  be  commuted^  i.  e.,  exchanged  for  a 
different  penalty  of  less  severity,  appropriate  to  the  status  of 
the  offender.  Death  is  such  a  i)unishment,  and  so  is  dismissal. 
Death  may  be  commuted  to  dismissal,  imprisonment,  &c. : 
for  dismissal,  a  suspension  from  rank  and  pay  for  a  certain 
term  is  the  most  appropriate  commutation.     XXI,  215,  484. 

6.  Mitigation,  unlike  commutation,  is  not  an  exercise  of  the 
pardoning  i^ower,  but  a  separate  function  incident  to  the  power 
vested  in  the  reviewing  authority  to  act  upon,  approve  and 
execute  the  sentence.-  In  approving  the  punishment  adjudged 
by  the  court  and  ordering  its  enforcement,  he  is  authorized, 
if  he  deems  it  too  severe,  to  graduate  it  to  the  proper  measure 
by  reducing  it  in  quantity  or  quality,  without  changing  its 
species:  this  is  mitigation.^^  XXXYII,  22;  XLI,  518.  Im- 
prisonment, fine,  forfeiture  of  pay,  and  suspension,  are  pun- 
ishments capable  of  mitigation.  As  a.n  instance  of  a  mitiga- 
tion both  in  quantity  and  quality,  lield  that  a  sentence  of  im- 
prisonment for  three  years  in  a  penitentiary  was  mitigableto 
an  imprisonment  for  two  years  in  a  military  prison.  XLI, 
518. 

7.  Held  that  it  was  not  a  due  exercise  of  the  power  given 
by  this  Article,  but  irregular  and  unauthorized,  for  a  post 
commander  to  suspend  the  execution  of  the  sentence  of  a  gar- 
rison court  convened  by  him,  during  good  behavior  on  the 
part  of  the  soldiers  sentenced.     XXX,  115. 

^  Compare  Ex  parte  Wells,  18  Howard,  307  5  Opinion  of  Just- 
ices, 14  Mass.,  472 ;  Perkins  v.  Stevens,  24  Pick.,  278 ;  Lee  v, 
Murpliy,  22  Grat.,  789;  Y  0])ius.  of  Attys.  Gen.,  3G9. 

^Compare  II  Opins.  of  Attys.  Gen.,  289. 

^See  opinion  of  Judge  Advocate  General  published  in  G. 
O.  71,  War  Department,  1875;  I  Opins.  of  Attys.  Gen.,  327; 
lY  Id.,  444.  [It  may  be  noted  that  these-oarly  opinions  of  the 
Attorney-Cienerai  inaccurately  describe  the  substitution  of  a 
lesser  i)unishment  for  a  death  sentence^  as  a  mitigation;  the 
proceeding  being  j)roperly  commutation.     See  §  5,  su;pra.\ 


ARTICLES  OF  WAR.  95 

ONE  HUIs^DEED  AND  rOURTEENTH  AETICLE. 

"Eveiy  party  tried  by  a  general  court-martial  shall,  upou  (lemaiid 
thereof,  made  by  himself  or  by  any  person  in  his  behalf,  be  entitled  to  a 
copy  of  the  proceedings  and  sentence  of  such  court." 

1.  A  copy  of  the  proceedings  and  sentence  cannot  properly 
be  furnished  under  this  Article  1  ill  the  same  have  been  finally 
acted  upon  and  such  action  has  been  promulgated  in  the  usual 
manner.     XIX,  024 ;  XXI,  380. 

2.  A  person  applying  for  the  copy,  "in  behalf"  of  the 
accused,  should  exhibit  some  satisfactory  evidence  that  he 
duly  represents  the  accused,  as  his  agent,  attorney,  or  other- 
wise. Where  it  does  not  satisfactorily  appear  that  the  party 
is  applying  for  and  on  behalf  of  the  accused,  he  cannot  be 
furnished  with  the  copy,  as  of  right,  under  the  Article.  A 
person  other  than  the  accused,  applying  on  his  own  account, 
is  not  entitled  to  the  copy.  Ill,  400 ;  XIX,  318 ;  XXI,  12 ; 
XXXI,  499  5  XXXYII,  100.  The  fact  that  the  applicant  is 
a  member  of  the  family  of  the  accused  does  not  entitle  him 
to  the  copy  in  the  absence  of  evidence  that  he  apj)lies  at  the 
instance  or  in  behalf  of  the  accused.  Ill,  348.  A  party 
applying  in  behalf  of  "friends  and  creditors"  of  the  accused, 
held  not  entitled  to  a  copy  of  the  record  of  his  trial.  XXI, 
583.  So  held  of  one  who  subscribed  his  apj)lication  merely 
as  "  attorney  at  law,"  without  showing  that  he  was  author- 
ized to  act  for  the  accused.    XIX,  450. 

3.  Ai^plicatious  for  copies  under  this  Article  may  be,  and 
in  practice  commonly  are,  addressed  in  the  first  instance  to 
the  Judge  Advocate  General,  who  thereui)on  furnishes  the 
copy,  certified  hy  him  as  correct,  at  the  expense  of  tbe  United 
States,  i)rovided  the  application  is  made  by  the  accused  or 
in  his  behalf.  If  not,  he  can  furnish  the  copy  only  by  the 
special  authority  of  the  Secretary  of  AYar.  Any  jierson  desir- 
ing a  copy  of  the  record  of  a  court-martial,  or  of  any  portion 
of  a  record,  who  is  not  entitled  to  be  furnished  with  the  same 
by  the  terms  of  this  Article,  should  apply  therefor  to  the  Sec- 
retary of  War,  stating  the  reason  for  his  application,  in  order 
that  it  may  api>ear  that  he  makes  the  same  in  good  faith 
and  for  a  proper  purpose.  [See  Official  Papers.]  If  the 
application  is  approved  by  the  Secretary,  it  will  be  referred 
to  the  Judge  Advocate  General,  who  will  then  have  the  copy 


96  ARTICLES  OF  WAR. 

prepared  and  transmitted.    XIX,  G35;  XXV,  52G;  XXXI, 
499  5  XXXVII,  106. 

4.  Tbe  accused  or  other  person  entitled  under  this  Article 
to  be  furnished  with  a  copy  of  a  record  of  trial,  is  not  enti- 
tled to  be  furnished  with  a  copy  of  a  report  of  the  Judge 
Advocate  General  made  u^^on  the  case.  To  receive  this,  spe- 
cial authority  must  be  obtained  from  the  Secretary  of  War. 
XIX,  657. 

5.  The  furnishing  of  a  copy  of  a  record  of  a  general  court 
martial  to  a  person  other  than  the  accused  and  not  api)lying 
in  his  behalf,  will,  as  a  general  rule,  be  authorized  by  the 
Secretary  of  War,  where  the  application  is  evidently  made 
in  the  interest  of  justice  and  the  coi)y  furnished  will  clearly 
subserve  a  good  and  desirable  purpose.    XXI,  336. 

6.  It  is  only  a  party  "tried  by  a  general  court-martial" 
who  is  entitled  by  the  Article  to  the  copy.  Parties  desiring 
copies  of  records  of  courts  of  inquiry^  for  use  in  evidence 
under  Art.  121,  or  for  other  puri)ose,  must  apply  to  the  Sec- 
retary of  War,  as  indicated  in  §  3,  supra.    I,  427. 

OXE  HUXDEED  AXD  FIFTEENTH  ARTICLE. 

''A  court  of  inquiry,  to  examine  into  the  nature  of  any  transaction  of, 
or  accusation  or  imputation  ngainst,  any  officer  or  soldier,  may  be  ordered 
by  the  President  or  by  anj--  commanding  officer;  but,  as  courts  of  inquiry 
may  l)e  perverted  to  dishonorable  purposes,  and  may  be  employed,  in  the 
hands  of  weak  and  envious  commandants,  as  engines  for  the  destruction 
of  military  merit,  they  shall  never  be  ordered  by  any  commanding  officer 
excei)t  ujion  a  demand  by  the  officer  or  soldier  whose  conduct  is  to  be 
inquired  of." 

1.  This  article  authorizes  the  institution  of  a  court  of  in- 
quiry^ only  in  a  case  of  an  "ofQcer  or  soldier,"  and  the  word 
"  olncer,"  as  employed  in  the  Articles,  is  defined,  by  Sec.  1342, 
Rev.  Sts.,  to  mean  commissioned  officer.    A  court  of  inquiry 

^  A  court  of  inquiry  is  not  a  court  in  the  legal  sense  of  the 
term,  but  rather  a  council,  commission,  or  board  of  investiga- 
tion. It  does  not  administer  justice ;  no  plea  or  specific  issue 
is  presented  to  it  for  trial ;  its  proceedings  are  not  a  trial  of 
guilt  or  innocence ;  it  does  not  come  to  a  verdict  or  pass  a 
sentence.  For  i:)urposes  of  investigation,  however,  a  court  of 
inquiry  in  this  country  is  clothed  with  am];le  powers,  and,  in 
an  imjiortant  case,  its  opinion  may  be  scarcely  less  significant 
and  even  final  than  that  of  a  military  court  iJroi)er,  that  is  to 
say  a  court  martial. 


ARTICLES   OF   WAR.  97 

cannot  therefore  be  convened  on  the  application,  or  in  a  case, 
of  a  person  who  is  not  an  ofiicer  (or  soldier)  of  the  army  at 
the  time.  Snch  a  conrt  cannot  be  ordered  to  investigate 
transactions  of,  or  charges  against,  a  party  who,  by  dis- 
missal, discharge,  resignation,  «&c.,  has  become  separated 
from  the  military  service,  althongh  snch  transactions,  or 
charges,  relate  altogether  to  his  acts  or  conduct  while  in  the 
army.  I,  305,  402;  XIX,  71  j  XXVII,  001;  XXXIX,  GIO; 
XLI,  2G3.  A  court  of  inquiry  cannot  be  ordered  in  a  case  of 
an  ''acting  assistant  surgeon,"  who  is  not  an  officer  of  the 
army  but  only  a  civil  employee.     XXXVIII,  210. 

2.  A  court  of  inquiry  should  not  in  general  be  ordered  by 
an  inferior — post  or  regimental — commander,  where  the 
charges  required  to  be  investigated  are  not  such  as  an  inferior 
court-martial  could  legally  take  cognizance  of.  Courts  of 
inquiry  convened  hy  such  commanders  are,  however,  of  rare 
occurrence  in  our  service.     XXXII,  1G3  ;  XXXY,  502. 

3.  Though  a  court  of  inquiry  has  sometimes  been  compared 
to  a  grand  jury,  there  is  little  substantial  resemblance  between 
the  two  bodies.  The  accused  appears  and  examines  witnesses 
before  snch  a  court  as  ireely  as  before  a  court-martial,  (see 
xYrt.  118,)  and  its  proceedings  are  not  required  to  be  secret  but 
may  be  open  at  the  discretion  of  the  court.    XXVIII,  580. 

1.  Although  neither  Art.  88,  or  other  i^rovision  of  the  code, 
specifically  authorizes  the  challenging  of  the  members  of  a 
court  of  inquirj^,  yet,  in  the  interests  of  justice  and  by  the 
nsage  of  the  service  in  this  country,  this  proceeding  is  per- 
mitted in  the  same  manner  as  before  courts-martial.  Art.  117 
requires  that  members  of  courts  of  inquiry  shall  be  sworn 
'^  well  and  truly  to  examine  and  inquire,  according  to  the  evi- 
dence, without  partiality,  prejudice,"  &c. ;  and  it  is  the  sense 
of  the  service  that  their  competency  so  to  do  should  be  liable 
to  be  tried  by  the  same  tests  as  in  a  case  of  a  court-martial.^ 
XXVII,  601. 

'  See  Macomb  §  204 ;  O'Brien,  292  •,  De  Hart,  278.  In  the  Joint 
Eesolution  of  Congress,  of  Feb.  13, 1874,  authorizing  the  Presi- 
dent to  convene  a  certain  special  court  of  inquiry,  it  was  "pro- 
vided that  the  accused  may  be  allowed  the  same  right  of  chal- 
lenge as  allowed  by  law  in  trials  by  court-martial."  It  appears, 
however,  to  have  been  regarded  in  the  debate  on  this  Eesolu- 
tion, (See  Cong.  Rec,  vol.  2,  Xos.  SS,  40,)  that  this  provision 
was  unnecessary  to  entitle  the  party  to  the  privilege. 
'  7  D 


98  ARTICLES  OF  WAR. 

5.  A  court  of  inquiry  has  uo  power  to  punisli  as  for  a  con- 
temi)t.  Such  power  of  this  nature  as  is  conferred  by  Art. 
SG  is  restricted  in  terms  to  courts-martial.  Moreover  a  court 
of  inquiry,  not  being  in  a  proper  sense  a  court,  cannot  exer- 
cise the  strictly  judicial  function  of  punishing  contempts.^ 
XXXII,  405. 

ONE  HUXDEED  AND  XIXETEEXTH  AETIOLE. 

''A  court  of  inqTiiry  shall  not  give  an  opinion  on  the  merits  of  the  case 
inquired  of  unless  specially  ordered  to  do  so." 

1.  An  opinion  given  by  a  court  of  inquiry  is  not  in  the  nature 
of  a  sentence  or  adjudication  i)ronounced  upon  a  trial.  The 
accused,  upon  a  subsequent  trial,  by  court  martial,  of  charges 
investigated  by  a  court  of  inquiry,  cannot  plead  the  jiroceed- 
ings  or  opinion  of  the  latter  as  a  former  trial,  acquittal,  or 
conviction.     XYI,  389  -,  XXIX,  98. 

2.  While  it  is  of  course  desirable  that  the  members  of  a 
court  of  inquiry,  directed  to  express  an  opinion,  should  con- 
cur in  their  conclusions,  they  are  not  required  to  do  so  by 
law  or  regulation.^  The  majority  does  not  govern  the 
minority  as  in  the  case  of  a  finding  or  sentence  by  court-mar- 
tial. If  a  member  or  a  minority  of  members  cannot  consci- 
entiously and  without  a  weak  yielding  of  independent  con- 
victions agree  with  the  majority,  it  is  better  that  such 
member  or  members  should  formally  disagree  and  present  a 

^A  loose  observation  of  Hough,  (Authorities,  10,)  that 
"  contemi)ts  before  courts  of  inquiry  are  as  much  punishable 
as  before  courts-martial,"  has  been  carelessly  repeated  by 
several  American  writers.  The  recent  English  writer,  Clode, 
correctly  states  the  law  (as  to  witnesses,)  in  saying,  (Mil.  and 
Mar.  Law,  198,)  that  a  court  of  inquiry  "  has  no  power  to  pun- 
ish them  for  contumacy  or  silence." 

^In  the  case  of  the  court  of  inquiry,  (composed  of  seven 
general  officers,)  on  the  Cintra  Convention,  in  1808,  the  mem- 
bers who  dissented  from  the  majority  were  required  by  the 
convening  authority  to  put  on  record  their  oi)inions,  and  three 
dissenting  opinions  were  accordingly  given.  A  further  in- 
stance, in  which  two  of  the  five  members  of  the  court  gave 
each  a  separate  dissenting  opinion,  is  cited  by  Ilough,  Prece- 
dents, 042.  Mainly  upon  the  authority  of  the  former  case, 
both  Hough,  (Precedents,  042,)  and  Simmons,  (§  339,)  hold 
that  members  non-concurring  with  the  majority  are  entitled 
to  have  their  opinions  reported  in  the  record. 


ARTICLES   OF  WAR.  99 

separate  report  (or  reports)  accordiDgly.  The  very  disagree- 
ment indeed  of  intelligent  minds  is  a  material  and  important 
fact  in  the  case,  and  one  of  which  the  reviewing  authority  is 
entitled  to  have  the  advantage  in  his  consideration  of  and 
action  upon  the  same.     XLI,  207. 

3.  Where,  as  in  the  majority  of  cases,  the  inquiry  is  insti- 
tuted with  a  view  of  assisting  the  determination  by  the  Presi- 
dent, or  a  military  commander,  of  the  question  whether  the 
party  should  be  brought  to  trials  the  opinion  of  the  court  will 
proi)erly  be  as  to  whether  further  proceedings  before  a  court- 
martial  are  called  for  in  the  case,  with  the  reasons  for  the 
conclusions  reached.  Where  no  such  view  enters  into  the 
inquiry,  but  the  court  is  convened  to  investigate  a  question 
of  military  right,  responsibility,  conduct,  &c.,  the  opinion  Avill 
properlj^  confine  itself  to  the  special  question  proposed  and 
its  legitimate  military  relations.  A  court  of  inquiry,  com- 
IDOsed  as  it  is  of  militarj^  men,  will  rarely  find  itself  called 
ui)on  to  express  an  opinion  ujion  questions  of  a  i)m*ely  legal 
character.^     XYI,  389. 

4.  It  is  not  irregular,  but  authorized,  for  a  court  of  inquiry, 
in  a  proper  case,  to  retiect,  in  connection  with  its  opinion, 
upon  any  improper  language  or  conduct  of  the  accused,  pros- 
ecuting witness,  or  other  i)erson,  ai)pearing  before  it  during 
the  investigation.^    XIX,  71. 

ONE  HUXDRED  AXD  TWEXTY-FIEST  ARTICLE. 

"  The  proceedings  of  a  court  of  inquiry  may  be  admitted  as  evidence 
by  a  court  martial,  in  cases  not  capital,  nor  extending  to  the  dismissal  of 
an  officer :  Provided,  That  the  circumstances  are  such  that  oral  testi- 
mony cannot  be  obtained." 

While  the  proceedings  of  a  court  of  inquiry  cannot  be 
admitted  as  evidence  on  the  merits^  upon  a  trial  before  a  court 

^In  an  exceptional  case,  that  of  the  special  court  of  inquiry 
authorized  by  Congress  in  the  Joint  Resolution  of  Feb.  13, 
1871,  the  court  was  required  to  express  an  oi)inion  not  only 
u])on  the  "moral,''  but  upon  the  ''technical and  legal  respon- 
sibility" of  the  oiiicer  for  the  "offences''  charged. 

^Thus,  the  court  of  inquiry  on  the  conduct  of  the  Seminole 
war,  adverted,  in  its  opinion,  unfavorably  upon  certain  offen- 
sive and  reprehensible  language  employed  against  each  other 
by  the  two  general  officers  concerned,  the  one  in  his  statement 
to  the  court,  and  tlie  other  in  his  official  communications 
which  were  put  in  evidence.  See  G.  O.  13,  Hdqrs.  of  Army, 
1837. 


100  ARTICLES  OF  WAR. 

martial  of  an  offence  for  which  the  sentence  of  dismissal  will 
be  mandatory  upon  conviction  j^  yet  held  that  ui)on  the  trial 
of  such  offence,  as  upon  any  other,  such  i^roceediugs,  properly 
authenticated,  would  be  admissible  in  evidence  for  the  x)ur- 
pose  of  impeaching  the  statements  of  a  witness  upon  the  trial 
who — it  was  proposed  to  show — ^had  made  quite  different 
statements  upon  the  hearing  before  the  court  of  inquiry .^ 
XLIII,  339. 

'     OXE  HUXDEED  AND  TWENTY-SEVENTH  AR- 
TICLE. 

'^Officers  charged  with  the  care  of  the  effects  of  deceased  officers  or  sol- 
diers shall  account  for  and  deliver  the  same,  or  the  proceeds  thereof,  to 
the  legal  representajtives  of  such  deceased  officers  or  soldiers.  And  no 
officer  so  charged  shall  he  jjermitted  to  quit  the  regiment  or  post  until 
he  has  deposited  in  the  hands  of  the  commanding  officer  all  the  effects  of 
such  deceased  officers  or  soldiers  not  so  accounted  for  and  delivered." 

This  Article,  in  counection  with  the  two  preceding  Articles, 
provides  for  the  securing  of  the  effects  of  deceased  officers 
and  soldiers,  making  inventory  of  the  same,  and  accounting 
for  them  to  the  proper  legal  representative,  &c.  These  Arti- 
cles have  special  reference  to  cases  of  deaths  of  military  per- 
sons while  in  active  service  in  the  field  or  at  remote  military 
X^osts,  and  their  provisions  apply  only  to  such  effects  as  are 
left  by  the  deceased  "in  camp  or  quarters."  [See  Arts.  125 
and  12G.]  An  attempt  by  the  commander,  &c.,  to  secure 
effects  left  elsewhere  would  not  be  within  the  authority  here 
given,  and  might  subject  the  officer  to  the  liability  of  an  ad- 
ministrator :  such  a  proceeding  would  not  therefore  be  advis- 
able.^ Upon  accounting  to  the  duly  qualified  legal  represent- 
ative, as  directed  in  the  Article,  the  responsibility  of  the 
officer  is  discharged,  and  it  remains  for  the  representative  to 
dispose  of  the  property  according  to  the  law  applicable  to  the 
case.     XLIII,  266. 

^  Compare  G.  O.  33,  Dept.  of  Arizona,  1871. 
^  See  this  ruling  published,  as  adopted  by  the  President,  in 
G.  C.  M.  O.  40,  Hdqrs.  of  Army,  1880. 
^Compare  Samuel,  659;  Hough,  (Practice,)  558. 


ABSENCE  WITHOUT  LEAVE— ACCOMPLICE.  101 


ABSENCE  WITHOUT  LEAVE. 

1.  Absence  without  leave  may  consist  in  an  act  of  omission 
as  well  as  in  one  of  commission.  Where  an  officer  detailed 
to  command  an  escort  of  prisoners  and  to  deliver  them  at  a 
certain  place,  neglected,  upon  this  service  being  performed, 
to  return  with  reasonable  ddigence  to  his  i)roper  station,  held 
that  he  was  chargeable  with  absence  without  leave,  it  being 
the  duty  of  an  officer  to  return  i^romptly  from  such  a  service 
without  further  orders.^     XXXIII,  371. 

2.  Where  an  officer  or  soldier,  on  returning  to  his  station 
after  an  unauthorized  absence,  is  j)laced  ui^on  or  allowed  to 
perform  full  duty  by  his  proper  commander,  such  action,  by 
the  custom  of  the  service,  operates  in  general  as  a  waiver  of 
the  charge  of  absence  without  leave,  and  may  ordinarily  be 
pleaded  as  a  good  defence  in  the  event  of  a  trial.    II,  37G,  391. 

See  one  HUNDRED  AND  THIRD  ARTICLE  S  2. 
COURT-MARTIAL,  II  §  14. 
DESERTION  §  1,  18. 
FINDING  §  8. 

PAY  AND  ALLOWANCES  $  8. 
REDUCTION  TO  THE  RANKS,  II. 


ABSENT  MEMBER. 

SEE  MEMBER  OF  THE  COLTIT  $  3. 

ACCOMPLICE. 

In  general,  where  an  accomplice  offers  and  is  admitted  to 
testify  on  the  part  of  the  government  against  an  accused  per- 
son, he  is  called  to  the  stand  under  an  implied  promise  that  no 
proceedings  will  be  taken  against  himself,  and  that  the  question 
of  his  iiardon  will  be  favorably  considered,  provided  he  makes 
a  full  disclosure  of  the  facts  within  his  knowledge ;  and  this 
whether  or  not  the  accused  be  convicted  bv  means  of  his  evi- 


^  See,  as  to  the  general  rule  on  this  subject,  G.  O.  82,  Hdqrs. 
of  Army,  1866.  y^^^^kp^ 


102  ACCUSER  OR  PROSECUTOR — A.  A.  SURGEON. 

dence.^  So,  where  a  party,  who  had  thus  been  admitted  to 
testify  as  witness,  and  had  in  good  faith  made  a  full  and  frank 
statement  of  the  circumstances  of  the  offence,  (of  which,  how- 
ever, the  accused  was  acquitted  by  the  court,)  was  himself 
subsequently  brought  to  trial  for  the  same  act,  and  convicted 
and  sentenced  for  his  part  in  the  same, — recommended  that 
his  sentence  be  remitted  by  the  President.  XI,  590  j  XIV, 
259. 

ACCUSER  OR  PROSECUTOR. 

SEE  SEVENTY  SECOND  ARTICLE  §  6-9. 

"ACTING  ASSISTANT"  OR  ''CONTRACT"  SURGEON. 

A  "contract"  or  "acting  assistant"  surgeon  is  not  a  mili- 
tary officer  and  has  no  military  rank  or  status.  He  is  amen- 
able indeed  to  the  military  jurisdiction  when  emi)loyed  with 
the  army  in  the  field  in  time  of  war ^  (see  Sixty  Third  Arti- 
cle §  2;)  but  he  is  in  fact  no  part  of  the  military  establish- 
ment, but  is  simply  a  civilian  employed  by  the  United  States, 
under  a  special  contract  for  his  i^ersonal  services  as  a  medical 
attendant  to  the  troops  j  contract  surgeons  being  thus  em- 
ployed because  there  are  not  enough  medical  oflBcers  of  the 
army  to  attend  all  the  posts.  When  not  serving  with  troops 
before  the  enemy  he  has  no  other  relation  to  the  military  or- 
ganization or  the  government  than  that  established  by  the 
terms  of  his  contract.  IX,  678  j  XXVI,  18;  XXYIII,  239; 
XXXIY,  207.  He  is  not  subject  to  military  orders  in  gen- 
eral, like  an  officer  or  soldier,  but  only  to  such  orders  or  di- 
rections as  properly  pertain  to  the  performance  of  his  partic- 
ular duties.  XXYII,  242.  He  is  of  course  not  liable  to  be 
detailed  as  a  member  of  a  military  court.  XXII,  542 ;  XXX, 
109.  As  a  civilian,  however,  he  is  entitled  to  the  j^er  diem 
allowance,  &c.,  when  duly  attending  a  court  martial  as  a  wit- 
ness.   XXIV,  180.    [See  Witness  §  19.] 

See  SEVENTY  FIFTH  ARTICLE  ^  I. 
EIGHTY  SECOND  ARTICLE  §  2,  4. 
ONE  HLT^DRED  AND  FIFTEENTH  ARTICLE  $  1. 

^See  King  v,  Eudd,  Oowper,  331 ;  United  States  v.  Lee,  4 
McLean,  103;  Whiskey  Cases,  9  Otto,  594 ;  People  v.  Whip- 
ple, 9  Cowen,  707  ;  1  Oliitty  Or.  L.  708-9  ;  1  Bishop  Cr.  Proc, 
§  1075-0,  and  notes;  also  lleport,  (Xo.  352,)  of  Committee  on 
Judiciary  of  Ho.  of  lieps.,  44th  Cong.,  1st  Sess.,  March  31, 1876. 


ADJOUKNMENT— AID-DE-CAMP.  103 


APJOURNMENT. 

1.  The  adjournment  from  day  to  day  of  a  military  court  is 
not  required,  by  law  or  regulation,  to  be  authenticated  by  the 
signatures  of  the  in^esident  and  judge-advocate.     YIII,  507. 

2.  While  the  i)ractice  of  noting  the  adjournment  of  the  court 
at  the  end  of  the  record  of  a  trial  is  a  usual  and  proper  one, 
and  is  often  of  service  in  indicating  the  sequence  of  the  cases 
tried  and  the  course  and  order  of  the  business  transacted,  a 
statement  of  such  adjournment  is  not  an  essential  part  of  the 
record  of  proceedings,  and  its  omission  will  not  aflect  their 
validity.     XXIII,  027;  XXXIII,  45G. 

3.  Where  the  order  convening  a  military  court  is  in  the 
more  usual  form,  requiring  it,  generally,  to  try  such  cases  as 
may  be  brought  before  it,  an  adjournment  at  some  i)eriod  of 
its  sessions  without  a  day  fixed  for  its  reassembling  will  not 
preclude  its  meeting  again  and  continuing  its  sessions  till  its 
business  is  terminated.     XXI,  91. 

4.  An  adjournment  '^sme  die^^  of  a  court  martial  is  quite 
without  legal  significance,  having  no  more  legal  effect  than  a 
simi)le  adjournment.  Such  an  adjournment  does  not  dissolve 
the  court,  since  a  militarj^  court  has  no  power  to  terminate  its 
own  existence  or  divest  its  authority.  XXI,  070 ;  XXVI,  588 ; 
XLII,  158.     [See  Court  Martial,  I  §  13.J 

5.  A  court-martial  in  session  at  a  military  i)ost  or  station 
is  authorized  to  adjourn  to  the  quarters,  at  the  same  post  or 
station,  of  a  sick  witness  and  there  take  his  testimony,  if  he 
is  in  fact,  as  certified  by  the  medical  officer,  too  ill  to  come  to 
the  court  room.^    XV,  400. 

ADVERTISEMENT. 

See  contract  ^S  2,  3,  (5,  7,  9,  10,  11. 

AID-DE-CAMP. 

1.  The  aids  of  the  General  of  the  Army,  though  not  hold- 
ing the  appointment  or  office  of  colonel  of  the  army,  are  in- 
vested by  law,  (sec.  1090,  Kev.  Sts.,)  with  the  ranic  of  colonel 

'  See  instance  in  G.  0.  M.  O.  37,  Dept.  of  the  East,  1870. 


104  ALASKA. 

upon  their  selection  as  aids  and  while  acting  as  sucli.^  They 
are  therefore  entitled  to  sit  ni)on  courts-martial  and  boards 
according  to  this  rank,  as  dating  from  their  selection.  XXX, 
168.  [Similarly  held  by  the  Secretary  of  War  in  the  case  of 
an  aid  of  the  Lieut.  General,  of  the  rank  of  lieutenant  colonel, 
detailed  upon  a  court  martial  for  the  trial  of  a  cadet  in  1870.  j 
2.  Held^  (December,  18G4,)  that  the  ''additional  aids-dc- 
camp^^^  authorized  by  the  Act  of  August  5, 18G1,  were  a  part  of 
the  regular  army.  They  were  appointed  by  the  President  and 
confirmed  by  the  Senate,  and  the  Act  creating  them  provided 
that  they  should  "bear  the  ranlc  and  aittJiority  of  captains, 
majors,  lieutenant  colonels,  or  colonels  of  the  regular  army.'''' 
Moreover,  this  Act  was  expressly  entitled  as  ''supplementary'''' 
to  the  Act  to  increase  the  military  establishment  of  the  United 
States,  of  July  29  of  the  same  year,  which  provided  for  an  in- 
crease of  the  regular  army  by  the  addition  of  new  regiments. 
And  although  the  Act  of  Aug.  5,  1861,  i)rovided  for  the  aj)- 
pointment  of  these  aids  only  during  the  rebellion,  and  for 
their  discharge  when  not  employed  in  active  service,  and 
their  reduction  in  number  at  the  discretion  of  the  President, 
yet  provisions  of  a  similar  character,  applicable  to  regular 
officers,  are  contained  in  sec.  6  of  the  principal  Act  of  July 
29.  It  is  not  essential  to  an  office  in  the  "regular"  army  that 
its  term  be  without  statutory  limit.  XI,  267.  [See  EeGtULAK 
Army.] 

ALASKA. 

By  the  treaty  of  cession  with  Eussia,  subjects  of  that  nation 
inhabiting  the  Territory  of  Alaska  at  the  date  of  the  treaty 
and  continuing  to  remain  such  inhabitants  for  three  years, 
became  thereupon  American  citizens.  But  the  treaty  neither 
mentions  nor  refers  to  British  subjects  or  the  subjects  of  any 
foreign  nation  other  than  Eussia:  such  persons,  therefore, 
residing  in  the  Territory,  can  become  citizens  only  in  the 
mode  and  form  prescribed  by  the  U.  S.  naturalization  laws. 
[See  Title  XXX,  Eev.  Sts.]    kxXVIII,  b^)^. 

2.  Alaska,  though  unorganized  as  a  Territory,  and  included 
in  the  military  department  of  the  Columbia,  is  lu)  more  under 

*  This  ruling  is  adopted  in  a  recent  opinion  of  the  Attorney 
General  of  August  11,  1880.  Compare  the  opinion  of  the 
Court  of  Claims  in  Wood  v.  United  States,  15  Ct.  CI. . 


ALIEN — APPEAL.  105 

military  government  or  juiisdiction  than  is  any  other  Terri- 
tory or  any  State  of  the  United  States.^    XXXVIII,  555. 


ALIEN. 

1.  Aliens,  honorably  discharged  after  enlisting  in  our  army, 
are  not,  by  such  discharge  alone,  made  citizens,  but  they  are 
thereupon  entitled,  (under  a  provision  of  the  Act  of  July  17, 
18G2,  now  Sec.  2166,  Kev.  Sts.,)  to  be  admitted  to  become  cit- 
izens without  i)revious  declaration  of  intention,  ui)on  merely 
presenting  to  the  proper  court,  (see  Sec.  2165,  Rev.  Sts.,)  a 
petition  for  the  purpose,  accompanied  by  i)roof  of  at  least  one 
year's  residence  within  the  United  States  previous  to  the  ap- 
phcation,  of  good  moral  character,  and  of  the  fact  of  honorable 
discharge.     XXVII,  69 j  XXIX,  295,  369;  XXXI,  255. 

2.  Held  that  Sec.  2166,  Rev.  Sts.,  (see  §  1,  supra,)  did  not 
apply  to  the  case  of  an  alien  honorably  discharged  from  an 
enlistment  as  a  seaman  in  the  navy ;  the  term  "armies  of  the 
United  States,"  employed  in  the  statute,  being  deemed  to 
refer,  (as  in  the  Constitution,)  only  to  the  military  force 
proper.'^    XLI,  613. 


AMENDMENT  OF  CHARGE. 

See  charge  ^  12,  28. 

COURT-MARTIAL,  I  $  7. 
JUDGE  ADVOCATE  $  10. 


APPEAL. 

Appeal,  in  the  sense  in  which  the  term  is  employed  in  the 
procedure  of  the  civil  courts,  is  unknown  to  the  military  law. 
[See  Thirtieth  Article  §  1.]     While  there  is  such  a  thing 

^  "It  is  a  mistake  to  suppose  that  the  Territory  of  Alaska  is 
under  military  rule  any  more  than  any  other  part  of  the 
country,  except  as  to  the  introduction  of  spirituous  liquors, 
and  the  making  of  arrests  for  violations  of  the  existing  law 
regulating  their  introduction  and  disjiosition,  (see  Indian 
Country  §  l,note.) — in  cases  of  which  arrests  "the  military 
reallv  act  as  civil  officers  and  in  subordination  to  the  civil 
law."     In  re  Carr,  3  Sawyer,  318. 

2  Similarly  held  in  In  re  Bailey,  2  Sawyer,  200. 


106  APPOINTJiIENT. 

as  a  new  trial, — a  proceeding,  liowever,  of  rare  occurrence, 
(see  New  Trial,) — a  party  legally  sentenced  by  a  competent 
court-martial  Las  no  right  of  appeal  to  a  higlier  or  other  tri- 
hunalj  but,  in  the  great  majority  of  cases,  can  obtain  relief 
only  b}'  application  to  the  pardoning  power,  or — where  the 
sentence  has  been  executed — to  Congress.     I,  451. 

That  the  proceedings  of  militarj'  courts  are  not  subject  to 
revision  by  the  civil  tribunals,  see  Oourt-Martial,  I,  §  1. 

APPOINTMENT. 

1.  An  appointment,  (or  commission,)  in  order  to  take  effect 
at  all,  must  be  accepted;  but,  when  accepted,  it  takes  effect 
as  of  and  from  its  date,  i.  e.,  the  date  on  which  it  is  completed 
by  the  signature  of  the  ai^pointing  power,  or  that  as  and  from 
which  it  purports  in  terms  to  be  operative.^  [See  Rank  §  1.] 
So  held  that  certain  Assistant  Surgeons,  whose  apjiointments 
were  noted  in  the  Army  Register  as  dating  from  the  dates  of 
acceptance,  were  entitled  to  have  such  dates  changed  to  those 
of  the  api:)ointments  as  actually  made;  that,  while  the  date 
of  acceptance  is  important  in  iixing  the  time  from  which,  ac- 
cording to  par.  1346,  Army  Regulations,  properly  commences 
the  right  to  pay,  ^  it  is  the  date  of  the  execution  of  the  ap- 
X>ointment  itself,  (or  the  x)riordate,  where  it  is  made  in  terms 
to  relate  back,)  which  i^roperly  fixes  the  relative  rank  of  the 
officer.     XXXIX,  629. 

2.  Where  to  certain  appointments  made  on  the  same  date 
a  particular  order  was  given,  with  the  intention  of  having  the 
appointees  rank  in  that  order,  but,  subsequently,  in  sending  the 
names  to  the  Senate  for  confirmation,  this  order  was  by  mis- 
take reversed;  lield^  after  a  confirmation  of  the  ai)pointees  as 
thus  sent,  that  this  mistake  and  action  could  properly  have 
no  effect  to  change  the  relative  rank  of  these  officers  as  given 
and  fixed  by  the  original  act  of  ai^i^ointmeut.     XLII,  254. 

3.  The  Constitution,  (Art.  II,  Sec.  2  §  2,)  provides  that 


^See  Marbury  v.  Madison,  1  Cranch,  137;  United  States  v. 
Bradley,  10  Peters,  304;  United  States  v.  LeBaron,  19  How., 
78;  Montgomery  v.  United  States,  5  Ct.  CI.  97. 

2  See  opinion  of  Attorney  General  of  June  8,  1878,  (XYI 
Opins.  — .) 


APPOINTMENT.  107 

"  Congress  may  by  law  vest  the  appointment  of  inferior  offi- 
cers in  the  President  alone."  So,  where,  in  three  several 
cases,  Congress,  by  special  legislation,  authorized  the  Presi- 
dent to  ^'  restore,"  or  "  reinstate,"  in  his  former  rank  and  office, 
an  officer,  (who  had  been — as  expressed  in  the  Act,  or  indi- 
cated by  the  reports  of  Committees,  debates,  &c. — in  the 
opinion  of  Congress,  erroneously  or  unjustly  dismissed  or 
mustered  out,)  and  to  place  him  on  the  retired  list  in  his  pre- 
vious grade,  held  that  such  legislation  empowered  the  Presi- 
dent to  reappoint  the  party  without  the  concurrence  of  the 
Senate,  and  that  the  simple  act  of  appointment  by  the  Presi- 
dent alone  fully  invested  the  party  with  the  military  office.^ 
XLII,  178,  193,  24G,  353.     [See  Statutes— Consteuction 

OF  §  0.] 

4.  The  Act  of  June  18,  1878,  c.  2G3,  s.  4,  made  eligible  for 
appointment,  as  second  lieutenants,  non-commissioned  offi- 
cers of  the  "commands"  of  the  "chiefs  of  the  staff  corps"  of 
the  army.  Held,  under  this  provision,  that  a  non-commis- 
sioned officer  on  detached  service  as  a  clerk  in  the  office  of 
the  Adjutant  General  was  eligible  to  such  appointment. 
XXXIX,  G29. 

In  a  case  of  a  principal  musician,  who  was  also  a  lance 
sergeant,  recommended  for  appointment  as  second  lieutenant 
under  s.  3  of  the  Act  of  June  IS,  1878,  c.  263,  held  that  neither 
a  principal  musician  nor  a  lance  sergeant  was  a  non-commis- 
sioned officer,  and  therefore  that  the  soldier  was  not  eligible  to 
appointment  under  the  statute.    XLIII,  373. 

5.  Held  that  a  special  authority  given  by  an  Act  of  Con- 
gress to  the  President  to  appoint  a  certain  civilian  to  "any 
vacancy  occurring  in  the  grade  of  captain"  in  a  certain  regi- 
ment, empowered  the  President  to  appoint  the  party  to  the 
next  such  vacancy,  without  regard  to  the  claim  thereto,  of 
the  senior  first  lieutenant.^     XXXIX,  525. 

6.  It  was  provided  by  the  Act  of  June  18,  1878,  c.  203,  s. 
13,  that  no  appointments  or  jiromotions  should  thereafter  be 
made  to  fill  any  vacancy  occurring  in  the  army,  (except  in 

^  See  this  ruling  confirmed  by  the  Court  of  Claims  in  Collins 
T.  United  States,  14  Ct.  CI.  56S.  The  Solicitor  General,  how- 
ever, in  an  opinion  of  April  10,  1879,  (XYI  Opins.  — ,)  had 
previously  held  contra. 

'  See  Xiv  Opins.  of  Attys.  Gen.,  499. 


108  APPOINTMENT. 

certain  inferior  grades  specified,)  until  the  report  of  a  certain 
joint  committee  on  tlie  reform  and  reorganization  of  the  army, 
constituted  by  the  same  Act,  and  required  to  make  report  to 
Congress  by  January  1st,  1879,  sliould  "be  made  and  acted 
upon  by  Congress."  The  report  was  made  prior  to  the  date 
fixed  and  was  considered  in  various  forms  by  both  houses  of 
Congress,  but  Congress  finally  adjourned,  on  March  4th,  1879, 
without  specifically  adopting  or  rejecting  the  ref>ort  as  such. 
Held  that  the  Congress  intended  by  the  Act  was  the  Congress 
by  which  the  Act  was  passed,  viz.,  the  Forty  Fifth  Congress ; 
that  as  this  Congress  ceased  to  exist  on  the  said  March  4th,  after 
which  no  action  by  it  upon  the  report  was  possible,  it  might 
properly  be  said  to  have  ''acted  upon"  the  same  within  the 
general  terms  of  the  Act;  and  that  accordingly,  from  and 
after  the  said  date,  the  prohibition  against  the  making  of  mil- 
itary appointments  might  be  considered  at  an  end.  But  held 
that  the  President,  in  thereafter  appointing  to  vacancies 
which  had  in  fact  occurred  during  the  period  of  prohibition 
fixed  by  this  Act,  could  not  legally  date  back  the  apx)oint- 
ments  to  take  effect  as  of  the  dates  of  the  vacancies,  but  that 
such  a|)i3ointments  could  take  effect  only  only  on  or  after  the 
said  March  UW    XLII,  197 ;  XLIII,  85. 

7.  Held  that  the  provision  of  sec.  6  of  the  Act  of  March  3, 
1869,  prohibiting  appointments  and  i^romotions  in  the  medi- 
cal and  other  staff*  corps  did  not  apply  to  or  jirevent  the  ad- 
vancement in  rank  of  assistant  surgeons  from  lieutenant  to 
captain ;  the  increased  rank  of  these  officers  resulting  by  oper- 
atio7i  of  law,  after  three  years'  service,  under  the  Act  of  July 
28,  1866,  (Sec.  1168,  Rev.  Sts.;)  and  no  new  appointment 
being  required  for  the  purpose.  ^    XXXI,  220,  223. 

8.  Eeldj  (Ji^ily?  1875,)  that  there  was  no  existing  law  pre- 
cluding the  President  from  appointing  a  captain  of  infantry 
to  the  office  of  assistant  quartermaster.     XXXVI,  429. 

9.  Seldj  (March,  1876,)  that  a  civilian,  (in  this  case  a  late 
captain  who  had  been  made  a  civilian  by  the  approval  and 
execution  of  a  sentence  dismissing  him  from  the  army,)  could, 
under  existing  law,  be  appointed  to  the  line  of  the  army  only. 

^  The  appointments  were  made  according  to  this  view,  and 
were  confirmed,  after  considerable  debate,  at  the  first  session 
of  the  Forty  Sixth  Congress. 

^  See,  to  a  similar  effect,  opinion  of  the  Solicitor  General  of 
January  2J,  1880,  (XYI  Opins.  — .) 


APPOINTMENT.  109 

in  tlie  grade  of  second  lieutenant^  in  the  absence  of  express  au- 
thority from  Congress.  For  his  appointment  to  his  former 
grade,  so  as  to  except  his  case  from  the  operation  of  the  rnle 
of  i^romotion  1)3'  seniority,  the  authority  of  Congress  would  be 
necessary.^     XXXVII,  363;  XXXVIII,  159;  XLIII,  130. 

10.  Held  that  an  appointment  of  a  person  as  an  officer  of 
the  army  with  the  view  and  purpose  of  at  once  placing  him 
on  the  retired  list,  would  not  be  within  the  appointing  i)ower 
of  the  Executive,  independently  of  authority  from  Congress ; 
appointments  to  military  office  by  the  President  being  in  con- 
templation of  law  appointments  for  the  active  duties  and 
service  of  the  military  life,  which  can  properly  be  performed 
only  by  men  i)hysically  and  mentally  qualified  therefor.  Con- 
gress, however,  of  course  may,  as  it  has  done  in  several 
cases,^  by  a  special  enactment  authorize  the  President  to  aj)- 
point  an  officer  and  thereupon  place  him  on  the  retired  list. 
XLIII,  130. 

11.  There  can  be  be  no  question  as  to  the  authority  of  Con- 
gress to  authorize  the  appointment  of  an  officer  with  both 
rank  and  pay  from  a  back  date.^  So  the  President,  (except 
where  expressh^  prohibited  by  statute — see  §  9,  siqn-a^)  may, 
with  the  concurrence  of  the  Senate,  appoint  an  officer  with 
rank  from  an  earlier  date,  though  not,  except  by  express  au- 
thority of  Congress,  with  back  pay.^  But  where  an  appoint- 
ment to  a  specific  military  office  has  been  dul}'  made  and  ac- 
ceiDted  and  has  taken  effect,  held  that  the  appointing  power, 
as  to  that  office,  is  exhausted.  The  Executive  maj'  indeed 
correct  an  error  (of  fact)  in  the  date  of  such  appointment,'' 
but — no  such  error  existing — he  can  not  re-make  the  same 
as  of  a  different  and  earlier  date,  either  by  his  own  action 
or  by  means  of  a  re-nomination  to  the  Senate, /or  the i^urpose 
of  redressing  an  injury  or  grievance  claimed  by  the  officer  to 
have  resulted  from  the  date  oiiginally  given  to  the  appoint- 
ment. For  such  would  be  a  granting  of  reliefs  and  relief  of  a 
sort  which  can  be  accorded  o\\\y  by  Congress.     XLIII,  -OS. 

^  See  XIV  Opms.  of  Attys.  Gen.  2,  161,  499. 

2  See  Acts  of  June  21,  1876,  c.  113;  June  19, 1878,  c.  330; 
Mch.  3, 1879,  c.  175;  Mch.  3,  1879,  c.  201. 

^  V  Opins.of  Attvs.  Gen.,  101;  VI  Id.,  Q^S,  71;  VII  Id.,  712. 

*IV  Opins.  of  Attys.  Gen.,  318,  608;  V  Id.,  132 ;  VIII  Id., 
223 ;  United  States  v.  Vinton,  2  Sumner,  299. 

^See  111  Opins.  of  Attys.  Gen.,  307. 


11.0  APPOINTMENT. 

12.  The  authority  to  '^appoint"  regimental  staff  officers, 
couferred  upon  regimental  commanders  by  par.  73  of  the 
Array  Eegulations,  is  no  part  of  the  constitutional  ai^point- 
ing  power,  but  is  merely  an  authority  to  select  and  detail. 
As  such  it  may  be  regulated  by  orders  from  the  War  Depart- 
ment, where  desirable  to  prevent  its  being  so  exercised  as  to 
prejudice  the  interests  of  the  service.  Thus  it  is  competent 
for  the  Secretary  of  War  to  direct  by  General  Order  that 
such  appointments  shall  not  be  dated  back  so  as  to  take  effect 
as  of  dates  prior  to  those  on  which  they  were  actually  made, 
as  also  that  apx)ointees  shall  not  become  entitled  to  the  addi- 
tional pay  for  a  period  x^i'ior  to  their  entering  upon  their 
duties.^    XLI,  009. 

13.  The  function  of  regimental  quartermaster  is  not  an 
office  but  merely  a  duty  attached  to  the  office  of  a  first  lieu- 
tenant appointed  to  exercise  it.  The  authority  given  to  the 
commander  of  a  regiment,  by  par.  73  of  Army  Regulations, 
to  ''  nominate  the  regimental  quartermaster  to  the  Secretary 
of  War  for  appointment  if  approved,"  is  simply  an  authority 
to  recommend  a  first  lieutenant  for  the  position,  and  the 
Secretary,  in  making  the  appointment,  does  not  exert  any  of 
the  appointing  power  of  the  Constitution,  but  only  a  power 
of  selection  and  detail.  Under  Art.  II,  Sec.  2  §  2  of  the 
Constitution,  a  head  of  an  executive  department  cannot  ap- 
point to  office  without  being  empowered  to  do  so  by  Congress. 
Thus,  the  appointment  of  a  regimental  quartermaster  being 
a  mere  detail,  the  Secretary  of  War  is  authorized  at  any  time 
to  withdraw  or  discontinue  the  appointment  and  service  of  a 
liarticular  officer  as  regimental  quartermaster,  and  to  call 
upon  the  regimental  commander  to  nominate  another  first 
lieutenant  therefor.    XLII,  507. 

14.  A  regimental  commander  is  not  obliged  by  par.  73, 
Army  Regulations,  to  appoint  to  be  sergeants  or  corj^orals 
of  companies,  the  soldiers  recommended  to  him  for  such 
appointments  by  the  company  commanders.  He  is  to  be  re- 
garded as  vested  with  a  discretion  in  the  matter,  and  though 
in  the  great  majority  of  instances  he  will  proi^erly  appoint  as 
recommended,  he  may,  and  should,  decline  to  appoint  where 

^  See  the  subsequent  G.  O.  73,  Hdqrs.  of  Army,  1879,  in 
accordance  with  this  opinion. 


APPROVAL  OR  DISAPPROVAL  OF  PROCEEDINGS,  ETC.  Ill 

he  believes  the  nominee  to  be  an  unfit  person.     XXYII, 
159. 

See  cadet  $  1-7. 

DISMISSAL,  II  $  4. 

RETIREMENT  ^  9. 

STATUTES— CONSTRUCTION  OF  $  6,  7,  12. 

SUPERNUMERARY  LIST. 

VOLUNTEERS  $  2. 

APPROVAL   OR   DISAPPROVAL  OF  PROCEEDINGS,  &c. 

See  FORTY-EIGHTH  ARTICLE  §  1. 

ONE  HUNDRED  AND  SECOND  ARTICLE  $  5. 

ONE  HUNDRED  AND  FOURTH  ARTICLE. 

ONE  HUNDRED  AND  SIXTH  ARTICLE. 

ONE  HUNDRED  AND  ELEVENTH  ARTICLE. 

DEFECTS  IN  PROCEEDINGS  OR  SENTENCE. 

NEW  TRIAL. 

PAY  AND  ALLOWANCES  $  9. 

PRESIDENT,  II  ^  1. 

RECORD  §  1,  k. 

REVIEWING  AUTHORITY. 

SENTENCE  AND  PL^^ISHMENT  $  14. 

ARMS— FURNISHING  OF. 

See  BOND,  IV,  V. 

CQLLEGE  OR  UNIVERSITY  $  2,  3,  4. 
ORDNANCE  DEPARTMENT. 

ARMS— SALE  OF. 

See  public  PROPERTY  §  4,  note. 
SALE  OF  MILITARY  STORES. 


ARMY— EMPLOYMENT  OF  FOR  CIVIL  PURPOSES. 

1.  Under  Art.  IV,  Sec.  4,  of  the  Constitution,  the  army  may 
be  employed  to  protect  a  State  from  "invasion"  or  "domestic 
violence "  only  by  the  order  of  the  President,  made  "  on 
application  of  the  legislature,  or  of  the  executive  when  the 
legislature  cannot  be  convened."  A  military  commander,  of 
whatever  rank  or  command,  can  have  no  autliority,  except 
by  the  order  thus  made  of  the  President,  to  furnish  troops  to 
a  governor  or  other  functionary  of  a  State,  to  aid  him  in 
making  arrests  or  establishing  law  and  order.  XXX,  125; 
XLI,  206. 


112       ARMY — EMPLOYMENT   OF  FOR  CIVIL  PURPOSES. 

2.  The  proviso  of  the  Constitution — "  when  the  legislature 
cannot  be  convened,"  may  be  said  to  mean  when  it  is  not  in 
session,  or  cannot,  by  the  State  law,  be  assembled  forthwith 
or  in  time  to  i)rovide  for  the  emergency.  When  it  is  in 
session,  or  can  legally  and  at  once  be  called  together,  it  will 
not  be  lawful  for  the  President  to  em^^loy  the  army  on  the 
application  merely  of  the  governor.     XXX,  172. 

3.  A  military  Ibrce  employed  according  to  Art.  IV,  Sec.  4, 
of  the  Constitution,  is  to  remain  under  the  direction  and 
orders  of  the  President  as  commander-in-chief  and  his  military 
subordinates :  it  cannot  be  placed  under  the  direct  orders  or 
exclusive  disposition  of  the  governor  of  the  State.  XXX, 
172. 

4.  The  constitutional  provision,  (Art.  TV,  Sec.  4,)  authorizes 
the  employment  of  the  army  to  protect  from  invasion  or 
domestic  violence  a  State  only.  The  President  is  not,  there- 
fore, empowered,  under  these  laws,  to  employ  any  part  of  the 
military  force  to  i^rotect  from  domestic  violence  a  Territory 
on  the  api)lication  of  the  territorial  governor  or  legislature.^ 
XXXIX,  578. 

5.  Officers  and  soldiers  of  the  army  can  legally  serve  on  a 
posse  comitatus  only  at  the  summons  or  api)lication  of  a  m.ar- 
shal  or  deputy  marshal  of  the  United  States ;  they  c>annot 
legally  serve  or  be  required  to  serve  on  the  posse  of  a  sheriff 
or  other  functionary  of  a  State.  XXXVI,  450.  [See  Posse 
Comitatus  §  1,  2.  | 

As  to  the  effect  of  the  provision  of  the  recent  Act  of  June 
18,  1878,  in  regard  to  the  service  of  the  military  on  a  posse 
comitatus,  see  next  paragraph. 

G.  It  is  provided  in  s.*15  of  the  Act  of  June  18,  1878,  c. 
2G3,  that — "  Prom  and  after  the  passage  of  this  act  it  shall  not 
be  lawful  to  employ  any  part  of  the  Army  of  the  United  States 
as  a  posse  comitatus,  or  otherwise,  for  the  purpose  of  executing 
the  laws,  except  in  such  cases  and  under  such  circumstances 
as  such  emi)loyment  of  said  force  may  be  expressly  authorized 
by  the  Constitution  or  by  act  of  Congress."  In  view  of  this 
legislation,  held  as  follows  : — 

That  inasmuch  as  it  was  not  expressly  authorized  by  any 

^ ''  It  is  remarkable  how  silent  the  Constitution  is  on  the 
subject  of  a  Territory  so-called,  that  is  an  organized  govern- 
ment within  the  Union  but  not  of  it."  Atty.  Gen.  Cushing, 
in  VII  Opins.,  574. 


AR'MY — EMPLOYBIENT   OF  FOR   CIVIL  PURPOSES.      113 

Act  of  Congress  that  U.  8.  ^larsbals  slioiild  be  empowered  to 
summon  the  military  to  serve  on  a  posse  comitatus,  (but  this 
was  authorized  only  indirectly  and  impliedly  by  the  i)rovision 
of  the  Act  of  Sept.  24,  1780,  incorporated  in  Sec.  787  of  the 
Revised  Statutes/)  the  army  could  not,  under  the  existing 
law,  legally  act  on  the  posse  comitatns  of  a  marshal  or  deputy 
marshal  of  the  United  States.-  XLI,  G77: — 

That — in  the  absence  of  such  an  ^^  unlawful  coudjination"  as 
is  contemplated  hy  Sec.  5298,  Rev.  Sts. — the  President  woidd 
not  be  authorized  to  employ  a  military  force  to  assist  insi)ectors 
of  customs  in  seizing  smuggled  property  or  arresting  persons 
concerned  in  violations  of  the  revenue  lawsj  such  an  emidoy- 
ment  not  being  expressly  authorized  by  any  statute.  XLI,  G77 : — 

That  whenever  a  marshal  or  deputy  marshal  vras  prevented 
from  making  due  service  of  judicial  process,  for  the  arrest  of 
persons  or  otherwise,  by  the  forcible  resistance  or  opposition 
of  an  unlawful  combination  or  assemblage  of  i)ersons,  the 
President  w^as  expressly  authorized  by  Sec.  5298,  Rev.  Sts.,  to 
employ  such  part  of  the  army  as  he  might  deem  necessary  to 
secure  the  due  service  of  such  process  and  execute  the  laws  ; 
first  however  in  any  such  case,  (as  in  any  case  arising  under 
Sees.  5297  and  5299,)  making  proclamation  as  required  by 
Sec.  5300.     XXXIX,  G05 ;  XLIII,  80,  321:— 

That,  notwithstanding  the  legislation  of  June  18,  1878,  the 
President  was  authorized  to  employ  the  military  to  arrest  and 
prevent  persons  engaging  in  introducing  liquor  into  the 
Indian  country  contrary  to  law,  as  also  to  arrest  persons 
being  otherwise  in  the  Indian  country  in  violation  of  law,  ^  or 

1 VI  Opins.  of  Attys.  Gen.  471 ;  Letter  of  Atty.  Gen.  Evarts 
to  the  U.  S.  Marshal  for  the  Xo.  Dist.  of  Fla.,  Atty.  Gen's 
Office,  Aug.  20,  18G8;  General  instructions  to  U.  S.  Marshals 
from  Atty.  Gen.  Taft,  published  in  G.  0. 9G,  Hdqrs.  of  Army, 
187G  ;  also  Opinion  cited  in  next  note. 

^  See,  to  a  similar  effect,  opinion  of  the  Attornev  General, 
of  October  10,  1878,  (XVI  Opins.  — .) 

^But  note  that,  in  view  of  the  provisions  of  Sec.  2151,  Rev. 
Sts.,  an  ofiicer  of  the  army  who  detains  a  person  arrested  under 
Sec.  2150  longer  than  five  days  before  ''conveying  him  to  the 
civil  authority,"  or  subjects  liim  when  in  arrest  to  unreason- 
ably harsh  treatment,  renders  himself  liable  to  an  action  in 
damages  for  false  imprisonment.  In  re  Carr,  3  Sawyer,  316; 
Waters  v.  Campbell,  5  Id.  17.  And  see  Alaska,  §  2,  note. 
8d 


114       ARMY — EMPLOYIVIENT   OF  FOR   CIVIL  PURPOSES. 

to  make  the  arrest  therein  of  Indians  charged  with  the  com- 
mission of  crime ;  such  employment  being  expressly  authorized 
by  Sees.  2150  and  2152,  Rev.  Sts.     XLIII,  111  :— 

That  the  President  was  authorized,  by  Sec.  2150,  Rev.  Sts., 
to  remove  by  military  force,  after  a  reasonable  notice  to  quit, 
certain  persons  commoranc  upon  an  Indian  reservation  con-" 
trary  to  the  terms  of  a  treaty  between  the  United  States  and 
the  tribe  occupying  the  reservation,  and  who  therefore  were 
there  ''  in  violation  of  law "  in  the  sense  of  that  Section.^ 
XXXYII,  266:— 

That  the  provision  of  June  18,  1878,  was  not  to  be  con- 
strued as  interfering  with  the  authority  and  duty  of  the 
President  to  employ  a  necessary  military  force  for  the  removal 
of  trespassers  from  a  military  reservation  ;  such  emi^loyment 
not  being,  properly  speaking,  "  for  the  purpose  of  executing 
the  laws,"  but  a  mere  protecting,  by  the  executive  department, 
of  public  proi^erty  in  its  military  charge.^  XXXI,  615.  [See 
Military  Reservation  §  6  and  note.] 

7.  In  all  cases  of  civil  disorders  or  domestic  violence,  it  is 
the  duty  of  the  army  to  preserve  an  attitude  of  indifference 
and  inaction  till  ordered  to  act  by  the  President,  by  the 
authority  of  the  Constitution  or  of  Sec.  2150,  5297  or  5298, 
Rev.  Sts.,  or  other  public  statute  -,  or  duly  required  to  serve 
on  the  posse  of  a  marshal  or  deputy  marshal  of  the  United 
States.  An  officer  or  soldier  may  indeed  interfere  to  arrest  a 
person  in  the  act  of  commit  ring  a  crime,  or  to  i^revent  a 
breach  of  the  peace  in  his  presence,  but  this  he  does  as  a 
citizen  and  not  in  his  military  capacity.  [See  Twenty 
Fourth  Article.]  Any  combined  effort  by  the  military, 
as  such,  to  make  arrests  or  otherwise  prevent  breaches  of  the 
l^eace  or  violations  of  law  in  civil  cases,  except  by  the  order  of 
the  President  or  the  requirement  of  a  U.  S.  official  authorized 
to  require  their  services  on  a  ])osse  comitatiis,  must  necessarily 
be  illegal.     In  a  case  of  civil  disturbance  in  violation  of  the 

^  See  XIV  Opins.  of  Attys.  Gen.  451 5  and  note  the  recent 
proclamation  of  the  President  published  in  G.  O.  !(>,  Hdqrs. 
of  Army,  1880,  relating  to  the  iutrusiou  of  unauthorized  per- 
sons upon  the  ''  Indian  Territory"  and  dechiring  that  the  army 
would  be  employed  to  effectuate  their  removal  if  necessary. 

-''13ue  caution  shouhl  be  observed,  however,  that,  in  exe- 
cuting this  duty,  there  be  no  unnecessary  or  wanton  harm 
done  to  i)ersons  or  property."     IX  Opins.  of  Attys.  Gen.  476. 


ARMY — ^EMPLOYMENT   OF  FOR   CIYIL  PURPOSES.        115 

laws  of  a  state,  a  military  commander  cannot  volunteer  to 
intervene  with  his  command  without  incurring  a  personal 
responsibility  for  his  acts.  In  the  absence  of  the  requisite 
orders  he  may  not  even  march  or  array  his  command  for  the 
purpose  of  exerting  a  moral  efi'ect  or  an  effect  in  terror  em  ; 
such  a  demonstration  indeed  could  only  compromise  the 
authority  of  the  United  States  while  insulting  the  sovereignty 
of  the  State.  XXX,  125;  XXXII,  32,  241;  XXXVI,  450; 
XLI,  20G. 

8.  Held^  (April,  1879,)  to  be  at  least  doubtful  whether  the 
authority  of  the  President  as  Commander-in-chief  could 
legally'  be  extended  to  the  ordering  of  an  officer  of  the  army 
upon  the  purely  civil  duty  of  instructing  Indian  youth,  unless 
indeed  such  instruction  was  to  be  given  by  him  as  a  professor 
of  a  college,  &c.,  under  Sec.  1225,  Rev.  Sts.  Special  duties 
of  an  exclusively  civil  character,  where  intended  to  be  any- 
thing more  than  merely  temporary,  have  in  general  been 
devolved  upon  military  officers  only  by  the  authority  of 
express  legislation, — as  for  example,  in  the  cases  provided 
for  by  Sees.  1225,  2002,  2190,  and  4G87,  Eev.  Sts.,  in  which 
authority  has  been  given  by  Congress  for  the  emjiloyment  of 
officers  of  the  army  as  professors,  &c.,  of  colleges,  Indian 
agents,  and  assistants  in  taking  the  census^  and  on  the  coast 
survey.  So,  advised,,  that,  if  thought  expedient  to  devolve 
upon  military  officers  the  function  of  the  instruction  of 
Indian  youth,  specific  authority  be  obtained  from  Congress 
for  the  purpose.^    XLI,  545. 

See  colored  TROOPS. 

^  See  G.  O.  b9,  Hdqrs.  of  Army,  1880. 

-  Congress  was  accordingly  resorted  to  for  authority  in  this 
instance,  and,  by  the  Act  of  June  23,  1879,  c.  35,  s.  7,  the 
Secretary  of  War  was  specially  empowered  ''to  detail  an 
officer  of  the  army  not  above  the  rank  of  captain  for  special 
duty  with  reference  to  Indian  education."  A  detail  was  made 
accordingly — by  S.  O.  194,  Hdqrs.  of  Army  of  Aug.  23d  fol- 
lowing. 


116  AKMY  REGULATIONS. 


ARMY  REGULATIONS. 

1.  Army  regnlatious  proper  are  merely  executive  or  admin- 
istrative rules  and  directions  as  distinguished  from  statutes.^ 
A  regulation  cannot  legislate  nor  can  it  contravene  the  stat- 
ute law.  A  regulation  in  conflict  with  an  existing  Act  of 
Congress  can  have  no  legal  effect ;  if,  subsequently  to  the 
issue  of  a  regulation,  an  Act  is  passed  with  which  it  con- 
flicts, it  becomes  at  once  inoperative.^    XXXYIII,  255,  641. 

^  Army  Regulations  are  not  to  be  confounded  with  the 
'^  rules  for  the  government  and  regulation  of  the  land  (and 
naval)  forces,"  which  Congress  is  emi:>owered  to  make,  by 
sec.  8,  Art.  I  of  the  Constitution  5  these  being,  of  course, 
statutory  rules.  The  use  in  this  section  of  the  word  ''  regula- 
tion ; "  the  fact  that  the  published  Army  Eegulations  contain 
sundry  statutory  provisions  not  distinguished  from  the  mass 
of  regulations  proper,  and  embrace  also  some  subjects  which 
seem  scarcely  within  the  scope  of  executive  directions  or  mil- 
itary orders  but  to  pertain  rather  to  the  province  of  the 
statute  law  ;  and  the  further  fact  that  the  Army  Regulations 
as  a  body  received  a  special  recognition,  (see  §  3,  infra^)  in 
the  Act  of  July  28,  18G6 — these  circumstances  have  contrib- 
uted to  confuse  regulations  with  statutes  much  to  the  embar- 
assment  of  the  student  of  military  law.  Regulations  proper, 
(unlike  Articles  of  war,  which  are  statutes,)  are  simply  orders 
and  directions  made  and  ])ublished  to  the  Army  by  the  Pres- 
ident, either  as  Commander-in-chief,  for  the  purposes  of  the 
exercise  of  command  over  the  army,  or  as  Executive,  for  the 
X)uriJOses  of  the  execution  of  powers  vested  in  him  by  law. 
By  Congress,  indeed,  the  President  or  Secretary  of  War  is 
sometimes  expressly  required  to  make  special  regulations  for 
special  objects.  Such  regulations,  however,  are  not  of  the 
class  of  general  army  regulations  proper.  These  may  be  made 
by  the  President  at  any  time,  at  his  discretion,  and  of  his  own 
authority.     See  citations  in  next  note. 

2  As  illustrating  the  distinction  between  statutes  and  regu- 
lations, and  the  principle  that  regulations  can  have  force  only 
so  far  as  they  are  not  inconsistent  Avith  the  statute  law,  see 
United  States  v.  Webster,  Daveis,  56-59,  and  2  Ware,  54-60 ; 
Boody  V.  United  States,  1  Wood.  &  Minot,  164 ;  McCalPs 
Case,  5  Philad.  259 ;  In  re  Griner,  16  Wise.  434 ;  Magruder 
V.  United  States,  Devereux,  148 ;  1  Opins.  of  Attys.  Gen. 
469  ;  IV  Id.  56-63,  225-7  ;  VI  Id.  10,  215,  365  5  VIII  Id.  343 ; 
XI  Id.  254 ;  O'Brien,  31. 

As  to  the  inferior  force  and  obligation  of  the  British  Army 


APt:MY  KEGIJLATIO^'S.  117 

2.  Au  authority  wliieli  can  legally  be  vested  by  legislation 
only,  cannot  of  course  be  conferred  by  an  executive  regula- 
tion. Thus  held  that  the  expenditure  of  the  proceeds  of  the 
sale  of  articles  manufactured  by  the  prisoners  at  the  Military 
Prison,  such  i^roceeds  being  public  funds,  could  not  properly 
be  the  subject  of  an  army  regulation.    XLII,  24. 

3.  Eeld  that  the  provision  of  s.  37,  c.  290,  Act  of  July  28, 
186G,  which,  in  directing  the  Secretary  of  War  to  i^repare 
and  report  to  Congress  at  its  next  session  a  new  set  of  regu- 
lations, added :  "  the  existing  regulations  to  remain  in  force 
until  Congress  shall  have  acted  on  -said  report,'' — meant 
merely  that  the  same  should  remain  in  force  ^.9  regulations  ; 
it  did  not  communicate  to  them  the  quality  or  effect  of  stat- 
utes. XXXIII,  OGG;  XXXYII,  417;  XXXIX,  235.  This 
enactment,  which  was  but  temporary,  and  was  practically 
superseded  by  a  similar  provision  of  s.  20,  c.  294,  Act  of  July 
15,  1870,  was  not  incorjjorated  in  any  form  in  the  Eevised 
Statutes.  Meanwhile  the  Eegulations  in  force  in  July,  1806, 
have  been  very  considerably  modified  and  added  to.^  Thus 
there  is  now  no  existing  statutory  sanction — such  as  that  of 
Sec.   1547,  Kev.   Sts.,   in  regard  to  the  regulations  of  the 

Eegulations  as  compared  with  the  3Iutiny  Act,  (and  Articles 
of  War  thereby  authorized,)  see  Samuel,  193-197.  Clode, 
(Mil.  &  Mar.  Law,  p.  T)7)^)  illustrates  the  nature  of  these 
Eegulations  in  noting  that  originally,  '^  Each  Colonel  had 
his  own  Standing  Orders — no  General  Eegulations  being 
in  existence — for  the  discipline  and  exercise  of  his  regi- 
ment." 

That  regulations  promulgated  through  the  Secretary  of 
War  are  to  be  ''  received  as  the  acts  of  the  Executive,'' — see 
United  States  v.  Eliason,  16  Peters,  301 ;  United  States  i\ 
Webster,  Daveis,  59  ;  United  States  v.  Freeman,  1  Wood.  & 
Minot,  50-1;  Lockington's  Case,  Brightly,  288;  McCall's 
Case,  5  Philad.  289  ;  In  matter  of  Spangler^  11  Mich.  322  ;— 
in  connection  with  other  authorities  noted  under  Seceetaky 
OF  War. 

'The  opinion  exi:>ressed  by  the  Attorney  General,  (XIV 
Opins.  173— January,  1873,)  'that  by  the  Act  of  1866,  "^  the 
authority  to  modify"  the  then  existing  army  regulati(ms, 
" previously  possessed  by  the  Executive,"  under  the  Act  of 
April  24, 1816,  "would  seem  to  have  been  taken  away," — was 
apparently  not  concurred  in  by  the  Secretary  of  War ;  repeated 
modifications  of  these  regulations  having' been  published  in 
orders  since,  (as  well  as  before,)  the  dateof  this  opinion.    In 


118  ARRAIGNMENT. 

navy^ — for  the  Army  Regulations  as  a  whole.  No  such  sanc- 
tion, however,  or  recognition,  is  necessary  to  give  effect  to 
regulations  projjer.^    XXXIX,  235. 

4.  Sec.  2  of  the  Army  Appropriation  Act  of  June  23,  1879, 
in  directing  the  Secretary  of  War  "to  cause  all  the  regula- 
tions of  the  army  and  general  orders  noiv  in  force,  to  be  codi- 
fied and  published  to  the  army,  and  to  defray  the  expenses 
thereof  out  of  the  contingent  fund  of  the  ami} ,"  refers  of 
course  to  the  regulations  and  orders  in  force  at  the  date  of 
the  Act.  But  although  the  expense  of  the  codifying,  (i.  e.y 
compiling  and  systematically  arranging,)  and  of  the  publica- 
tion, of  such  regulations  and  orders  only  as  are  in  force  at 
the  date  of  the  Act,  can  be  paid  for  out  of  the  fund  desig- 
nated, the  Secretary  of  War  can  of  course  cause  the  regula- 
tions and  orders  made  and  issued  since  the  date  of  the  Act  to 
be  compiled  and  arranged  by  clerks  of  his  Department,  as  a 
part  of  their  regular  work,  and  without  additional  compen- 
sation,— so  that  the  x^ublication  of  the  whole,  when  finally 
made,  shall  exhibit  the  existing  regulations  and  orders  at 
that  date.     XLIII,  83. 

5.  A  breach  of  an  army  regulation,  imposing  a  duty  upon 
an  officer  or  soldier,  is  in  general  chargeable  as  "  Conduct  to 
the  prejudice  of  good  order  and  military  discipline,"  and 
punishable  under  Art.  62,  XXXIX,  283.  [See  Sixty-sec- 
ond Article  §  0.  And  compare,  as  to  violations  of  the  Eeg- 
ulations  for  the  Military  Academy — Cadet  §  7.] 


ARRAIGNMENT. 

See  record  ^  1,  g. 

United  States  v.  Eliason,  10  Peters,  301,  the  Supreme  Court, 
referring  to  the  general  power  of  the  Executive  to  institute 
army  regulations, observes : — ''The power  to  establish  implies, 
necessarily,  the  power  to  modify    *     *     *     or  create  anew." 

^This  Section  is  as  follows: — "The  orders,  regiriations, and 
instructions  issued  by  the  Secretary  of  the  Xavy  i)rior  to 
July  14,  1802,  with  such  alterations  as  he  may  since  have 
adox^ted,  with  the  ai)proval  of  the  President,  shall  be  recog- 
nized as  the  regulations  of  the  Xavy,  subject  to  alterations 
adopted  in  the  same  manner." 

^  See  first  note  under  this  Title. 


AEEEST,   I— MILITARY.  119 


ARREST,  I— MILITARY. 


1.  An  office  r  may  be  put  iu  arrest  by  a  verbal  or  writteo 
order  or  eoumiuuicatiou  from  an  authorized  sux^erior.  advis- 
iug  Lim  that  he  is  phiced  iu  arrest  or  will  consider  himself  iu 
arrest,  or  iu  terms  to  that  effect :  the  reason  for  the  arrest 
need  not  be  specified.  At  the  same  time  he  is  usually  required 
to  siUTender  his  sword,  though  this  formality  may  be  dis 
pensed  with.  But  an  arrest,  though  au  almost  invariable,  is 
not  an  essential  preliminary  to  a  military  trial :  to  give  the 
court  jurisdiction  it  is  not  necessary  that  the  accused  should 
have  been  arrested;  it  is  sufficient  if  he  voluntarily,  or  in 
obedience  to  an  order  directing-  him  to  do  so,  appears  and 
submits  himself  to  trial.  So,  neither  the  fact  that  an  accused 
has  not  been  formally  arrested,  or  arrested  at  all,  nor  the  fact 
that,  having  been  once  arrested  and  released  from  arrest,  he 
has  not  been  re-arrested  before  trial,  can  be  pleaded  in  bar  of 
trial  or  constitute  any  ground  of  exception  to  the  validity  of 
the  proceedings  or  sentence.  II,  77  ;  XVII,  419 ;  XIX,  119 ; 
XXIX,  170 ;  XXX,  IGl ;  XXXV,  112.  An  officer  is  in  no 
case  entitled  to  demand  to  be  arrested.     XVII.  119. 

2.  Exceptintheclassof  cases  indicated  in  Art.  21,  only  '-com- 
manding officers "  can  place  commissioned  officers  in  an-est. 
[See  par.  221,  Army  Eegulations.]  The  commanding  officer 
thus  authorized  is  the  commander  of  the  regiment,  company, 
detachment,  post,  department,  &c.,  in  which  the  officer  is 
serving.  XXVI,  G12.  Where  a  company  is  included  in  a 
post  command,  the  commander  of  the  post,  rather  than  the 
comjiany  connuander,  is  the  proper  officer  to  make  the  arrest 
of  a  subaltern  of  the  company.  XXIX,  301.  In  the  majority 
of  cases,  however,  arrests  are  originally  ordered  by  the 
authority  by  whom  the  court  has  been  or  is  to  be  convened. 
XXIX,  17o! 

3.  It  is  clearly  to  be  infeiTcd  from  par.  223  of  the  Army 
Eegulations  that  unless  other  limits  are  specially  assigned 
him,  an  officer  in  aiTCSt  must  confine  himself  to  his  quarters. 
It  is  generally  understood  indeed  that  he  can  go  to  the  mess- 
house  or  other  place  of  necessary  resort.  It  is  not  unusual, 
however,  for  the  commander,  in  the  order  of  arrest,  to  state 


120 

certain  limits  within  which  the  officer  is  to  be  restricted,  and, 
except  in  aggravated  cases,  these  are  ordinarily  the  limits  of 
the  post  where  he  is  stationed  or  held.  Y,  434.  An  officer 
or  soldier,  though  retained  in  close  arrest,  should  be  i)ermit- 
ted  to  receive  such  visits  from  his  counsel,  witnesses,  &c.,  as 
may  be  necessary  to  enable  him  to  prei^are  his  defence. 
XXXYIII,  03.  [See  Counsel,  III  §  3.]  When  an  officer  is 
I)laced  in  close  arrest  in  his  "quarters,"  and  these  consist  of 
several  rooms,  he  is  not  obliged  to  confine  himself  to  a  single 
room.     XXYII,  210. 

4.  The  status  of  being  in  arrest  is  inconsistent  with  the  per- 
forming of  military  duty.  II,  77.  Placing  an  arrested  officer 
or  soldier  on  duty  terminates  his  arrest.  XX YI,  114.  Keleas- 
ing  a  soldier  froui  arrest  and  requiring  him  to  perform  military 
duty,  after  his  trial  and  while  he  is  awaiting  the  promulga- 
tion of  his  sentence,  can  be  justified  only  by  an  extraordinary 
exigency  of  the  service.    YIII,  234. 

5.  The  fact  that  a  soldier  has  been  held  in  arrest  for  an 
uureasonably  protracted  period  before  trial,  or  while  await- 
ing the  promulgation  of  his  sentence,  is  a  good  ground  for  a 
mitigation  of  his  punishmeut.     XXXY,  504. 

6.  An  officer  is  not  privileged  from  arrest  by  virtue  of  being 
at  the  time  a  member  of  a  general  court-martial.  But  an 
arrest  of  an  officer  while  actually  engaged  upon  court-martial 
duty,  should  if  possible  be  avoided.    YII,  320. 

7.  An  officer  under  arrest  is  not  disqualified  to  prefer 
charges.     Y,  348 ;  XYI,  QS. 

8.  The  imi)osition  of  an  arrest  affects  in  no  manner  the  right 
of  an  officer  or  soldier  to  receive  the  pay  and  allowances  of 
his  rank.  IX,  04 ;  XIII,  386 ;  XXIII,  18.  Except  in  a  case 
of  a  deserter,  (see  par.  1359,  Army  Eegulations,)  no  legal 
inhibition  exists  to  paying  a  soldier  while  in  arrest — either 
before  trial  or  while  awaiting  sentence — his  regular  pay  and 
emoluments.     XXX,  419. 

9.  The  principle  of  the  common  law  by  which  a  witness  is 
protected  from  arrest  ^  should  in  general  be  applied  to  mili- 
tary cases.  If  it  can  well  be  avoided,  an  arrest  should  cer- 
tainly not  be  imposed  upon  an  officer  or  soldier  while  attending 
a  court  martial  as  a  witness.    But  such  an  arrest  would  con- 

n  Greenl.  Ev.  §  316  ^  Smythe  v.  Banks,  4  Dallas,  329. 


ARREST,   II — BY   THE   CIVIL  AUTHORITIES.  121 

stitute  an  irregularity  only,  and  would  not  afifect  tlie  validity 
of  the  proceedings  of  a  trial  to  Tvliicli  the  party  thus  arrested 
was  subsequently  sulrjected.    XXXIX,  12. 

10.  A  soldier  while  confined  in  arrest  should  not  be  fettered 
or  ironed  excej^t  where  such  extreme  means  are  necessary  to 
restrain  him  from  violence,  or  there  is  ^ood  reason  to  believe 
that  he  will  attempt  an  escape  and  he  cannot  otherwise  be 
securely  held.    XXX,  483. 

See  sixty  SECOXD  ARTICLE  $  6 
SIXTY  FIFTH  ARTICLE. 
SIXTY  SIXTH  ARTICLE. 
SEVENTIETH  ARTICLE. 
SEVENTY  FIRST  ARTICLE. 
ONE  HUNDRED  AND  THIRD  ARTICLE  $  7. 
COURT  MARTIAL,  1^5;  II  $  6. 
INDIAN  COUNTRY  v>  2. 
JUDGE  ADVOCATE  ^  14,  24. 
NATIONAL  CEMETERY  $  4. 
SUSPENSION  $  6. 

ARREST,  II— BY  THE  CIVIL  AUTHORITIES. 

1.  A  soldier,  (other  than  a  deserter — under  Art.  48,)  cannot 
legally  be  required  to  make  good  to  the  United  States  a  period 
of  time  during  which  he  was  held  in  arrest  or  on  trial  by  the 
civil  authorities  on  account  of  a  civil  oflence.  XXII,  570 : 
XXIV,  279. 

2.  A  soldier,  arrested  by  the  civil  authorities  and  released 
on  bail  to  await  trial,  may,  on  returning  to  his  station,  be 
required  to  perform  the  usual  military  duty  appropriate  to 
his  rank.     XXIY,  270 ;  XXY,  559. 

3.  The  fact  that  a  soldier  has  been  arrested  by  the  civil 
authorities  is  no  ground  for  witholding  pay  due  him  at  the 
date  of  arrest.  XXIY,  279 ;  XXYI,  5G3.  Xor  can  a  soldier 
so  arrested  legally  be  deprived  of  pay  accruing  during  the 
period  of  arrest  and  detention.^    XXXI,  288,  295. 

^  See  II  Opins.  of  Attys.  Gen.,  396.  And  see  also  the  opin- 
ion of  the  Second  Comptroller  of  the  Treasarv,  published  in 
G.  O.  39,  Hdqrs.  of  Army,  1879,  to  the  eftect  that  the  tact 
that  a  soldier  has  been  convicted  of  crime  by  the  civil  author- 
ities does  not  per  se  imjiair  his  right  to  the  pay  of  his  rank. 

Where  a  soldier  is  convicted  by  a  civil  court  of  a  serious 
offence,  or  is  arrested  for  such  an  offence  under  circumstances 


122  ARTIFICIAL  LIMBS— ASSISTANT   SURaEON. 

*  4.  There  is  no  statute,  (like  Sec.  1237,  Eev.  Sts.,  relating  to 
enlisted  men,)  by  which  a  commissioned  officer  is  exempted 
from  arrest  for  debt,  where  such  arrest  is  otherwise  legally 
authorized.^    XXXIII,  8. 

See  fifty  NINTH  ARTICLE. 


ARTIFICIAL  LIMBS. 

1.  To  entitle  a  person,  disabled  as  a  soldier,  to  receive  arti- 
ficial limbs  or  apparatus  under  Sec.  4787,  Eev.  Sts.,  it  is  not 
necessary,  in  the  absence  of  any  statutory  requirement  on  the 
subject,  that  he  should  have  been  honorably  discharged  from 
the  military  service.  Xor  can  the  mere  fact  that  he  has  been 
a  deserter  aflect  his  right.     XIY,  672. 

2.  Held  that  the  descrii^tion,  "hired  men  of  the  land  forces," 
employed  in  the  Act  of  Feb.  27,  1877,  amending  Sec.  4787, 
Eev.  Sts.,  might  properly  be  construed  to  include  the  mechan- 
ics and  laborers  emi^loyed  at  Arsenals  by  the  authority  of  the 
provisions  of  Title  XYII  of  the  Eevised  Statutes.  XXXIX, 
316. 

ASSIGNMENT  OF  CONTRACT. 

See  contract  ^  18,  19,  20. 

ASSISTANT  SURGEON. 

1.  It  is  a  peculiarity  in  the  status  of  assistant  surgeons, 
(under  Sec.  1168,  Eev.  Sts.,)  that  these  are  the  only  officers 
in  our  army,  (except  Lieutenants  of  Engineers  and  Ordnance — 
see  Sec.  1207,  E.  S.,)  in  whose  case  promotion  to  a  higher  grade 
results  by  operation  of  law  from  mere  duration  of  service  and 
independently  of  any  action  by  the  api^ointing  power.  XLIII, 
208. 

clearly  indicating  that  he  is  guilty,  it  will  in  general,  as  sug- 
gested by  the  Attorney  General,  in  the  opinion  cited,  '^  be 
better  for  the  government  to  discharge  him  from  service  and 
thus  to  terminate  his  claim  to  compensation." 

^  See  Moses  v.  Mellett,  3  Strobh.  210  j  McCarthv  v.  Lowther, 
3  Kelly,  397  ;  Ex  parte  Harlan,  39  Ala.  565.  But  note  in  this 
connection  the  general  principle  of  public  policy  by  which 
I)ublic  servants  are  exempted  liom  arrest  on  civU^  (though  not 
on  criminal,)  process,  while  on  i)ublic  duty.  United  States  v. 
Kirby,  7  Wallace,  483 ;  Coxson  v.  Poland,  2  Daly,  (jQ. 


ASSISTANT   SURGEON — AUTHENTICiSTION.  123 

2.  Held  that  a  person  appoiuted,  under  sec.  17  of  the  Act 
of  July  28,  18GG,  fixing  the  military  peace  establishmeut,  an 
assistant  surgeon  with  the  rank  of  captain, — to  which  rank 
he  was  entitled  by  length  of  service  according  to  the  Act, — 
was  entitled  to  rank  as  a  captain  in  the  medical  department, 
and  in  the  army,  from  the  date  of  his  appointment,  and  as 
such  to  have  precedence  and  priority  in  service,  and  on  the 
Army  Eegister,  over  all  assistant  surgeons  api)ointed  captain 
after  himself,  though  they  may  have  been  appointed  assistant 
surgeons  with  the  rank  of  first  lieutenants  before  he  was  so 
appointed  with  the  rank  of  cai^tain;  and,  further,  that  he 
was  entitled,  on  courts-martial,  boards,  &c.,  to  rank  any  cap- 
tain of  the  army  whose  aj^pointment  as  such  was  of  more 
recent  date  than  his  own.^    XXXIX,  491,  508. 

See  appointment  ^  1,  7. 


ATTACHMENT,  (OF  PROPERTY.) 

See  civil  PEOCESS  §  1-5. 


ATTACHMENT,  (OF  WITNESS.) 
See  witness  »S  28-34. 


AUTHENTICATION. 

See  one  HUNDRED  AND  SIXTH  ARTICLE  $  2. 
JUDGE  ADVOCATE  §  22. 
RECORD  ^  1,  L 

^  See,  to  a  similar  general  effect,  opinions  of  the  Solicitor 
General  of  June  6  and  July  2,  1878,  (XVI  Opins. .) 


124:  BAIL—BOARD  OF  INVESTIGATION. 


B. 


BAIL. 

"No  court-martial,  military  commander,  or  other  military 
authority  is  empowered  to  accept  bail  for  the  appearance  of 
an  arrested  party  or  to  release  a  prisoner  on  bail.  Bail  is 
wholly  unknowTi  to  the  military  law  and  practice  j  nor  can  a 
court  of  the  United  States  grant  bail  in  a  military  case.^  IX, 
260  5  XXr,  258. 

BALL  AND  CHAIN. 

See  sentence  AND  PUNISHMENT  §  8. 

BOARD  OF  INVESTIGATION. 

A  Board  of  officers  convened  to  investigate — obtain,  or  hear 
and  examine,  evidence — and  report,  can,  in  the  absence  of 
specific  statutory  authority,  exercise  none  of  the  peculiar 
legal  functions  either  of  a  court-martial  or  a  court  of  inquiry. 
II,  340;  XXI,  335;  XXVI,  492;  XXXII,  3;  XLI,  263.  Its 
members  cannot  be  sworn ;  it  cannot  swear  witnesses ;  civil- 
ian witnesses  cannot  be  compelled  to  appear  before  it;  nor 
are  the  witnesses  who  apj^ear  and  testify  legally  entitled  to 
any  compensation  for  attendance  or  travel.  XI,  672;  XXI, 
335 ;  XXYI,  401^.  Such  a  Board  cannot  tri/,  (XI,  672 ;  XXXII, 
3,)  nor  can  it  sentence.  XI,  672.  There  is  properly  no  "ac- 
cused" party  required  or  entitled  to  ai^pear  before  it  as  before 
a  court-martial  or  court  of  inquiry.  II,  340.  It  is  not  re- 
stricted by  law  as  to  the  i)eriod  of  its  sittings,  nor  is  it  affected 
by  any  statute  of  limitations.    XXVI,  493.    Its  members, 

^The  act  of  July  3864,  c.  253,  s.  7, — which  authorized  a 
judge  or  commissioner  of  a  U.  S.  District  Court  to  admit  to 
bail  a  contractor  or  inspector,  amenable  to  trial  by  court- 
martial  luider  the  then  existing  law,  and  arrested  with  a 
view  to  trial  thereby, — is  no  longer  ojierative. 


BOARD   or  SURVEY.  125 

(though  in  this,  indeed,  it  does  not  differ  from  a  court  of 
inquir}',)  may  present  two  or  more  reports  where  they  cannot 
concur  in  one.  XLI,  207.  [See  One  Hundred  and  Nine- 
teenth Article  §  2.] 

2.  As  a  court  of  inquiry  cannot  be  ordered  in  a  case  of  a 
civilian,  a  body  of  officers  convened  to  inquire  into  and  report 
upon  the  facts  of  the  case  of  an  officer  who  has  been  legally 
dismissed  from  the  service,  is  a  mere  board  of  investigation, 
and  can  exercise  none  of  the  special  powers  of  a  court  martial 
or  court  of  inquiry.     XLI,  2G3. 

BOARD  OF  SURVEY. 

1.  A  board  of  survey  is  not  a  court,  and  can  not  legally 
exercise  the  powers  expressly  vested  by  statute  in  courts- 
martial  or  courts  of  inquiry.  XXXIY,  30G.  It  is  no  part  of 
the  province  of  a  board  of  survey  to  convict  of  crime.  Where 
such  a  board,  in  fixing  upon  {jn  officer  a  pecuniary  responsi- 
bility for  the  loss  of  certain  subsistence  stores,  expressed  in- 
cidentally the  opinion  that  the  same  had  been  stolen  by  a 
certain  soldier,  held  that  this  opinion  could  not  operate  as  a 
finding  of  theft,  or  constitute  authority  for  the  stoijping 
against  the  pay  of  the  soldier  of  the  value  of  the  stores. 
XLII,  605. 

2.  There  is  no  statute  or  regulation  authorizing  the  swear- 
ing of  a  board  of  survey  or  its  members,  nor  indeed  is  it  nec- 
essary or  suitable  that  such  a  body,  not  being  a  court,  should 
be  specially  sworn.  A  board  of  survey,  moreover,  has  no 
legal  capacity  to  swear  persons  attending  before  it  as  wit- 
nesses; nor  is  it  within  the  province  of  an  executive  order  to 
authorize  such  a  board  to  administer  an  oath  either  to  itself 
or  to  a  witness.^    Y,  590  j  XXXIII,  518,  5GI5'  XXXiV,  305. 

3.  A  board  of  survey,  though  it  may  not  swear  witnesses, 
may  receive  and  file  with  its  report  affidavits  taken  as  pre- 
scribed in  par.  1031  of  the  Army  Eegulations.  Y,  590.  But 
such  a  board  would  not  in  general  be  justified  in  charging  a 
soldier  with  the  value  of  public  iiroperty  lost  or  damaged, 
upon  the  affidavit  alone  of  an  interested  party — as,  for  exam- 

^  See  opinion  of  Judge  Advocate  General  published  in  fidl 
in  G.  O.  08,  War  Dept.,  1873. 


126  BOND. 

pie,  the  officer  respoDsible  in  law  for  such  property.  XXY, 
663. 

4.  Under  pars.  1019  and  1020,  Army  Eegulations,  the  pro- 
ceedings of  a  board  of  survey  are  not  "  complete  "  till  they 
receive  the  approval  of  the  convening  authority.  If  in  fact 
disapproved  by  him  they  are  made  inoperative,  and  cannot 
properly  be  received  as  vouchers  or  form  the  basis  of  a  charge 
against  the  account  of  an  officer  or  soldier.     XXXIV,  413. 

5.  The  i)rovision  of  par.  1027  of  the  Army  Eegulations 
relative  to  the  assessing  by  a  board  of  survey  of  the  value, 
&c.,  of  property  lost  or  damaged  by  a  soldier,  is  not  to  be 
rega;rded  as  done  away  with,  (solar  as  regards  a  loss  of  or  dam- 
age done  to  the  ''  horse,  arms,  clothing  or  accoutrements  "  of 
a  soldier,)  by  the  provisions  of  the  Seventeenth  Article  of 
war.  The  value,  «&c.,  is  to  be  assessed  by  a  board  as  indi- 
cated by  the  regulation,  except  where  a  court-martial  is  con- 
vened in  the  case.  Where  that  is  done,  it  is  the  court  which 
is  to  fix  the  amount  of  the  loss  or  damage.  XXXVII,  352. 
[See  Seventeenth  Article  §  2.] 

That  a  court  of  inquiry  may  have  passed  upon  the  question 
of  merits  and  respousibility  in  the  case  cannot  affect  the 
authority  of  the  x)roper  commander  to  order  a  board  of  survey 
for  the  i)urposes  of  making  the  assessment  indicated  by  par. 
1027.  It  is  no  part  of  the  province  of  a  court  of  inquiry  to 
make  such  assessment ;  the  same  must  therefore  be  made  by 
a  board  of  survey  unless  a  court-martial  be  ordered  under 
Art.  17.  A  court-martial  is  not  in  general  ordered  except 
where  one  is  demanded  by  the  i^arty  according  to  par.  1027, 
or  the  circumstances  are  such  as  to  make  it  desirable  that  he 
should  be  punished  as  an  offender.    XXXVII,  417. 

BOND. 

I.  Of  disbursing  officer,^  and  generally. 

1.  The  bond  should  of  course  be  executed  by  all  the  par- 
ties— obligor  and  sureties.    XXXVII,  573.    As  to  sealing^  it 

^  Here  may  be  noted  the  opinion  of  the  Attornev  Gen- 
eral of  June  8,  1878,  (XVI  Opins.  ^ ,)  that  the  giving  of 

bond  is  not  necessary  to  entitle  persons  appointed  to  office 
in  the  army  lequiring  the  disbursement  of  money,  to  begin 
to  receive  pay,  but  that  they  are  entitled,  like  other  officers, 


BOND.  127 

is  not  specifically  required  by  the  Army  Eegulations  (pars. 
989,  990,)  tbat  disbursing  officers'  bonds  shall  be  under  seal; 
and,  in  the  absence  of  such  requirement,  it  certainly  is  not 
necessary  that  the  signatures  to  a  bond  should  be  accompanied 
by  formal  seals  when  executed  in  a  State  in  which  such  seals 
are  dispensed  with  by  statute.  Moreover,  it  has  been  held  by 
the  IJ.  S.  Supreme  Court  ^  that  an  official  bond,  though  with- 
out seals,  may  be  good  as  a  contract  at  common  law.  As  seals, 
however,  are  still  required  or  in  use  in  some  of  the  States,  and 
to  avoid  any  questions  that  might  arise  from  the  absence  of  a 
seal,  advised^  (February,  18G8,)  that  whatever  be  the  law,  as 
to  the  use  of  seals,  of  the  State  or  States  in  which  the  contracts 
of  the  obligor,  or  sureties,  are  actually  entered  into,  formal 
seals  "  of  wax  or  other  adhesive  substance,"  be  in  all  cases 
required  to  be  affixed  by  the  subscribing  parties.-  XXYI, 
471 ;  XXXIV,  141,  142 ,  XXXVII,  573  j  XXXVIII,  101. 

The  obligation  of  each  surety  must  be  for  the  wliole  amount 
of  the  i)enalty ;  the  regulation,  (par.  990,)  requiring  that  the 
sureties  ^'  shall  be  jointly  and  severally  bound  for  the  whole 
amount  of  the  bond."  So,  where  the  penalty  in  a  quarter- 
master's joint  and  several  official  bond  was  810,000,  and  the 
sureties,  in  executing  the  same,  assumed  to  be  bound  only  in 
the  sum  of  $5,000  each,  the  words  "for  five  thousand  dollars" 
being  written  under  each  signature — held  that  the  instrument 
was  contradictory,  did  not  conform  to  the  regulations,  and 
should  not  be  accepted.  XXVI,  327.  And  vsimilarly  held  in 
a  case  of  a  bond  with  a  penalty  of  $40,000,  where  the  sureties 
wrote  opposite  their  signatures,  respectively,  "for  835,000," 
"  for  85,000."  XXXIV,  183.  Sureties  cannot  qualify  their 
obligation  by  thus  limiting  their  i^ersonal  liabilities.  A  bond 
to  the  United  States  cannot  be  accepted  by  the  Government 
where  the  sureties  are  not  bound  severally  as  well  as  jointly 
for  the  entire  penalty  without  condition  or  qualification. 
XLIII,  70. 

There  is  no  statute  or  regulation  prohibiting  an  officer  of  the 

to  be  paid  upon  the  acceptance  of  their  appointments,  accord- 
ing to  par.  1340,  Army  Eegulations,  whether  they  have  at 
that  time  furnished  their  bonds  or  not. 

'  United  States  v.  Linn,  15  Peters,  290. 

-  See  the  requirement  to  this  effect  subsequently  published 
in  Circular,  Hdqrs.  of  Army,  of  June  11,  1809. 


128  BOND. 

army  from  acting  as  a  surety  on  the  official  bond  of  anotlier 
officer.  Such  a  relation,  however,  is  not  one  to  be  favored. 
XXXIV,  164  5  XXXVIII,  659.  A  married  woman  may  be 
accepted  as  surety  on  a  bond  if  her  contract  is  executed  in  a 
State,  c&c,  where,  by  statute,  a  woman,  though  married,  is 
authorized  to  enter  into  contracts  and  hold  property  in  her 
own  right  precisely  as  if  she  were  single.  XXXVII,  364, 
423.  A  statement  should  properly  be  added  in  the  affidavit 
of  a  female  surety  to  the  effect  that  the  affiant  is  worth  the 
sum  specified  m  her  oion  right.     XLII,  505  j  XLIII,  168,  176. 

A  bond  cannot  be  extended  beyond  the  period  of  the  orig- 
inal obligation  so  as  to  continue  to  bind  the  sureties,  with- 
out their  consent.  XXX,  270.  Xor  can  an  expired  bond  be 
revived  so  as  to  bind  the  sureties  without  their  consent. 
XXXI,  135.  The  Secretary  of  War,  (or  President,)  has  no 
power  to  release  the  sureties  in  an  official  bond  from  their 
liability  to  the  United  States.^  XLI,  160.  A  neglect  by  the 
Government  to  institute  suit  on  a  bond  does  not  discharge  the 
sureties;  laches  not  being  in  such  cases  imputable  to  the 
United  States.^    XXX,  270. 

Par.  990  of  the  Regulations  contemplates  plural  sureties 
with  bonds  of  disbursing  officers.  A  justification  of  a  surety, 
however,  is  no  part  of  the  bond,  (XXVI,  327 ;  XXXVIII, 
418,)  and  as  the  object  of  the  justification  is  to  satisfy  the 
Secretary  of  War  that  the  surety  is  good  for  double  the  pen- 
alty, the  Secretary,  wliere  am^^ly  satisfied  that  one  certain 
person  offered  or  executing  as  surety  is  pecuniarily  sufficient 
for  such  amount,  would  be  authorized  to  accept  him,  (on  his 
I)roperl3^  justifying,)  as  sole  surety,  and  to  waive  any  further 
surety  or  sureties  with  the  instrument.  A  subordinate  of 
course  can  have  no  such  authority.  In  view,  however,  of  the 
terms  of  the  regulation  and  of  the  practice  under  it,  this 
authority  would  of  course  most  rarely  be  exercised  in  cases 
of  disbursing  officers'  bonds.     XXXVIII,  418 ;  XLI,  169. 

Of  two  or  more  sureties  to  an  official  bond,  each,  according 
to  the  regulation,  should  justify  separately;  a  justification 
in  joint  form  is  irregular  and  imi)roper.  XXXIII,  273; 
XXXVIII,  101.  An  affidavit  of  justification  should  properly 
be  expressed  in  the  first  person ;  not  in  the  third.    XXXVII, 

'  VII  Opins.  of  Attys.  Gen.  62. 

•^  United  States  v.  Kirkpatrick,  2  Wheaton,  720. 


BOND.  120 

567.  The  sureties  should  personally  sign  each  his  own  separate 
affidavit:  an  affidavit  signed  only  by  tlie  notary  or  other 
official  administering  the  oath  is  Irregular.  XXXI Y,  147, 
271,  337.  Where  the  affidavit  has  been  taken  and  executed, 
it  is  not  regular  for  the  obligor,  even  with  the  assent  of  the 
surety,  to  modify  it  in  a  material  particular — as,  for  examjole, 
in  the  amount  stated ;  where  there  is  error,  the  proper  course 
is  for  the  surety  to  justify  anew.    XXXIV,  337. 

Stamps  are  not  now  required  for  bonds  or  for  certificates  of 
justification  j  the  same  having  been  done  away  with  by  the 
act  of  June  6,  1872,  c.  315,  s.  36.    XXXIY,  575. 

II.  Of  contractor. 

2.  The  general  rule  that  bonds  given  to  the  United  States 
should  be  under  formal  seal,  ai)X)lies  with  particular  force  to 
contractors'  bonds. '    XXVIII,  680. 

3.  Where  a  contractor  offered  a  bond,  subscribed,  as  sure- 
ties, by  his  two  daughters,  whose  ages,  as  well  as  pecuniary 
relations  to  the  obligor,  were  not  known  or  stated,  advised 
that  to  accept  such  a  bond  would  be  a  bad  precedent. 
XXXIX,  518. 

4.  Where  the  sureties  to  the  bond  of  a  contractor,  who  had 
failed  to  i)erform  his  contract,  applied  to  be  discharged  from 
their  obligation  on  the  ground  that  they  had  been  induced  to 
enter  into  the  bond  by  false  representations  made  to  them  by 
the  contractor,  held  that  the  Secretary  of  War  had  no  au- 
thority, upon  such  or  other  ground,  to  release  sureties  who  had 
become  legally  liable  to  the  United  States.  ^    XXXVII,  275. 

5.  A  contractor  for  "i^ersonal  services"  (see  Contract 
§  11,)  is  not  in  general  required  to  give  a  bond.  XXX VIII, 
238. 

^  A  regulation  to  this  effect  is  now  prescribed  in  G.  0. 10, 
Hdqrs.  of  Army,  1879 — republished  and  amended  in  G.  O.  72 
of  1879  and  40  of  1880.  And  see  the  same  Orders  for  general 
regulations  in  regard  to  bonds  of  contractors  and  bidders; 
also  Contract  §  11,  infra. 

In  the  recent  river  and  harbor  appropriation  Act,  of  June 
14,  1880,  an  additional  and  special  condition  is  required  in  the 
bonds  of  contractors  performing  work  under  the  Act. 

-See  VII  Opins.  of  Attys.  Gen.  62;  and  compare  Con- 
tract §  22,  infra. 

9d 


130  BOND. 

III.  Of  bidder. 

5.  Held.,  in  view  of  the  iirovision  on  the  subject  of  the  Act 
of  April  10, 1878,  that  bidders  for  contracts,  from  whom  bonds 
were  required,  should  properly  bind  themselves  not  to  with- 
draw their  bids  within  sixty  days  from  the  date  of  the  open- 
ing of  the  bids.  In  the  great  majority  of  cases,  indeed,  bids 
will  be  required  to  be  kept  open  but  for  a  brief  period,  since 
the  contract  will  generally  be  awarded  at  once  or  in  a  few 
days.  Oases,  however,  may  occur  where,  owing  to  questions 
raised  as  to  the  legality  or  regularity  of  bids,  the  comi^etency 
of  bidders,  «&c.,  a  considerable  delay  may  be  incurred  before 
the  decision  of  the  proper  superior  can  be  obtained  or  the 
difficulty  be  otherwise  removed.  It  was  no  doubt  for  cases 
of  this  nature  that  the  provision  in  regard  to  time  was  intended 
to  pro^dde.^    XXXIX,  G28. 

lY.  Of  College,  &c.,  as  required  by  Sec.  1225,  Eev.  Sts. 

G.  A  bond  executed  in  his  official  capacity  by  the  i^resident 
or  other  officer  of  an  incorjjorated  college  or  university,  for 
the  use  of  which  arms,  &c.,  have  been  issued  by  the  Secretary 
of  War  under  this  Section,  cannot  i:)roperly  be  accepted  as 
binding  the  corporation  without  evidence  that,  by  the  Act 
of  incorporation  or  otherwise,  such  officer  is  legally  empow- 
ered to  act  for  and  bind  the  institution.  XXXYIII,  340  j 
XLI,  409,  647 ;  XLIII,  70,  275,  294. 

7.  The  sureties  to  an  official  bond  given  in  compliance  with 
this  Section  should  properly  be  i^ersons  unconnected  with 
the  institution.  XXXVIII,  34;  XXXIX,  312.  So  held,  that 
a  bond  of  this  class  executed  by  an  officer  of  the  college  as 
obligor,  and  by  the  same  person,  also  in  his  official  capacity, 
and  another  such  officer,  as  sureties,  could  not  properly  be 
accepted  by  the  Secretary  of  War.  XLI,  499.  And  similarly 
held  where  the  official  obligor  executed  also  as  surety  in  his 
^private  capacity.     XXXVIII,  340,  354. 

8.  The  obligor  and  sureties  should  be  bound  without  condi- 
tion or  reservation.  Where  a  bond  offered  by  a  college  con- 
tained a  provision  to  the  eflect  that  to  satisfy  any  liability 
incurred  thereunder,  recourse  should  be  had  to  the  prop- 
erty of  the  college  before  the  property  of  the  sureties  was 

^  See  the  regulation  on  this  subject  now  prescribed  in  G.  O. 
40,  Hdqrs.  of  Army,  1880,  p.  17-18. 


BOND.  131 

resorted  to,  advised  that  such  bond  be  not  accepted  by  the 
Secretary  of  War.    XXXYIII,  340. 

9.  Xo  form  for  the  bond  being  prescribed  in  the  statute, 
the  Secretary  of  War  may,  if  he  deems  the  security  ample, 
accept  a  bond  with  one  surety,  or  he  may  even  accept  the 
bond  of  the  corporation  without  sureties.  In  general,  how- 
ever, it  will  be  safer  to  require  sureties ;  such  a  requirement 
being  also  in  accordance  with  the  general  rule  governing 
bonds  given  to  the  United  States.  Sureties  to  bonds  given 
by  colleges  should  in  general  be  required  to  justify  in  the 
usual  manner.    XXXIX,  312. 

10.  Though  official  bonds  have  usually  been  tendered  under 
this  statute,  the  same  are  not  essential.  A  personal  bond  ex- 
ecuted by  the  president  or  other  officer  of  the  institution,  or 
other  person,  in  a  i)rivate  capacity,  as  obligor,  may  properly 
be  accepted,  if  the  security  is  deemed  sufficient.    XLII,  598. 

Y.  Of  Governor,  for  arms,  &c.,  furnished  under  statute. 

11.  The  Joint  Kesolutions  of  July  3, 1876,  and  June  7, 1878, 
authorizing  the  Secretary  of  War  to  issue  arms  to  certain 
States  and  to  the  Territories,  provide  that  the  Governor  in  each 
case  shall  ''give  a  good  and  sufficient  bond  for  the  return"  of 
the  arms,  &c.,  or  payment  for  the  same.  Held  that  abond  given, 
under  these  statutes,  by  a  gov^ernor  of  a  Territory  whose 
legislature  had  pot  authorized  him  to  bind  the  Territory  in  this 
manner,  could  have  no  further  legal  effect  than  as  the  personal 
obligation  of  the  governor  j  that  what  the  statute  contem- 
plated was  an  official  bond  j  and  therefore  that  a  governor's 
bond,  given  in  the  absence  of  special  authority  devolved  u])on 
him  by  the  legislature  to  bind  therebj^  the  Territory,  could 
not  legally  be  accepted  by  the  Secretary  of  War.  XXXVIII, 
167 ;  XLI,  467  ;  XLIII,  78,  93.  And  similarly  held  of  a  bond 
given  by  the  governor  of  a  State,  upon  an  issue  of  camp  and 
garrison  equipage  under  the  Joint  Eesolution  of  June  20, 
1878.    XXXIX,  656. 


132  BOUNTY. 


BOUNTY. 


1.  Bounty  is  not  jyay^  nor  is  it  properly  an  "  allowance"  in 
the  sense  in  which  that  term  is  ordinarily  used  as  referring 
to  the  regular  pecuniary  emoluments  of  soldiers  other  than 
pay.^    X,  mi  5  XY,  35G. 

2.  Under  the  Act  of  July  22,  1861,  c.  9,  s.  5,  granting  a 
bounty  to  all  volunteer  soldiers  honorably  discharged  after 
two  years'  service,  held  that  a  volunteer  soldier  who  had 
served  the  requisite  period  could  not  legally  be  deprived  of 
bounty  unless  he  had  been  dishonorably  discharged  by  the 
sentence  of  a  general  court-martial,  or  in  commutation  of  one. 
X,  285.     [See  Fourth  Article.] 

3.  The  two  years'  service  required  by  the  Act  of  18G1  need 
not  have  been  continuous  service.  XI,  500.  Xor,  if  two 
years'  service  wa^  rendered,  does  it  affect  the  right  of  the 
soldier  to  bounty  that  during  a  material  i^art  of  the  period  he 
was  detailed  upon  and  performed  a  quasi  civil  duty  as  a  clerk. 
XXXI,  507. 

4.  In  the  absence  of  any  express  statutory  i)rovisiou  for- 
feiting a  soldier's  right  to  bounty  where  he  has  been  guilty 
of  desertion,  held  that  the  mere  fact  that  a  desertion  had  been 
committed  by  a  soldier  at  some  period  of  his  4;erm  of  service 
could  not  affect  his  right  to  bounty,  provided  that,  having 
served  the  requisite  period,  he  was  finally  honorahly  dis- 
charged. Thus,  in  repeated  cases  of  deserters,  who,  after 
being  restored  to  duty  without  trial,  or  upon  full  execution 
or  remission  of  sentence — for  whether  the  deserter  be  brought 
to  trial  and  punished  or  not  is  immaterial — had  performed 
faithful  service,  and  been  finally  honorably  discharged  j  held 
that  no  forfeiture  of  bounty  had  been  incurred.    XII,  139  j 

^  The  term  "  allowances,"  however,  when  employed  in  a  gen- 
eral sense,  has  been  regarded  as  including  bounty.  Thus  see 
XIII  Opius.  of  Attys.  Gen.  197,  where  it  is  held  that  the  gen- 
eral forfeiture  of  pay  and  allowances  due  at  the  date  of  the 
offence,  imposed  upon  deserters  by  x>ar.  1358,  Army  Iie§s., 
embraced  instalments  of  bounty  due  at  the  time  of  the  deser- 
tion ;  also  United  States  v.  Landers,  2  Otto,  77,  where  the 
court  goes  so  far  as  to  hold  tbat  a  forfeiture  of  ''pay  and 
allowances,"  imposed  hy  sentence^  includes  bounty. 


BREACH   OF   ARREST.  133 

XY,  35G ;  XVIII,  333 ;  XIX,  2C0 ;  XXI,  G14 ;  XXII,  G53 ; 
XXIX,  127  ;  XXXVI,  478  5  XXXIX,  413  ;  XLIII,  218. 

5.  lu  a  case  of  this  class,  where  a  deserter — noted  as  such 
in  the  usual  manner,  at  the  time,  on  the  rolls  of  his  com- 
pany— was  restored  to  duty  without  trial,  and  at  the  end  of 
his  proper  term  was  granted  an  honorable  discharge ;  held 
that  such  discharge  was  a  formal  final  judgment  passed  by 
the  government  upon  the  entire  military  record  of  the  soldier, 
and  an  authoritative  declaration  by  it  that  he  left  the  service 
in  a  status  of  honor ;  that,  as  such,  it  dispensed  altogether 
with  the  supposed  necessity  (in  order  that  the  soldier*might 
obtain  bounty)  of  a  removal,  by  order,  of  the  charge  of  deser- 
tion from  the  rolls,  and  amounted,  of  itself,  to  the  removal  of 
any  charge  or  imi)ediment  in  the  way  of  his  receiving  such 
bounty — to  which,  (having  served  the  requisite  period,)  he 
was  therefore  entitled.^    XXYI,  484. 

G.  Where  a  veteran  volunteer  was  honorably  discharged, 
not  by  reason  of  the  expiration  of  his  full  term  or  because 
his  services  were  no  longer  required  by  the  government,  but 
because  of  his  promotion  to  the  grade  of  a  commissioned  offi- 
cer, held  that  he  was  entitled  only  to  such  i^roportion  of  the 
bounty  and  premium  specified  in  G.  0. 191,  War  Dept.,  18G3, 
as  had  accrued  at  the  date  of  his  discharge.    XII,  548. 

See  FORFEITUEE,  II  $  17. 
STOPPAGE  $  3. 


BREACH   OF  ARREST. 

See  SIXTY  SECOND  ARTICLE  $  6. 
SIXTY  FIFTH  ARTICLE. 

^  See  the  similar  case  of  United  States  v.  Kelly,  15  Wallace, 
34,  in  which,  in  affirming  the  judgment  of  the  Court  of  Claims, 
(5  Ct.  CI.  E.  47G,)  Chief  Justice  Chase,  delivering  the  opinion 
of  the  Supreme  Court,  quotes  this  ruling  as  that  of  "  the  able 
lawyer  tcho  Jills  at  irresent  thex^ost  of  Judge  Advocate  General,''^ 
and  adds — "  With  this  opinion  ice  entirely  concur.''^ 


134  BKEVET  RANK. 


BREVET  RANK. 

1.  Brevet  rank  can,  properly,  neither  be  conferred,  nor  take 
effect,  except  as  an  incident  to  full  rank  of  a  lower  grade. 
XXI,  608. 

2.  In  view  of  tbe  repeal,  (by  the  Act  of  March  1,  1869,)  of 
the  old  61st  Article  of  war,  (which  did  away  also  with  the 
portion  of  par.  10  of  the  Army  Eegulations  which  was  de- 
rived* therefrom,)  an  officer,  except  where  specially  assigned 
to  duty  according  to  his  brevet  rank  by  the  President,  is  no 
longer  entitled  to  precedence  on  courts-martial  or  otherwise 
by  reason  of  his  brevet  rank.     XXXY,  447. 

3.  Keld  that  a  confirmation  by  the  Senate,  on  March  3, 
1869,  of  a  brevet  appointment  previously  made,  was  of  no 
effect  and  conferred  no  right  to  a  brevet  commission ;  Con- 
gress having,  two  days  before,  by  the  Act  of  March  1,  1869, 
c.  52,  enacted  that  "  from  and  after  the  passage  of  this  Act 
commissions  by  brevet  shall  only  be  conferred  in  time  of  war." 
XXXIX,  209. 

4.  Under  the  i:)resent  72d  Article,  a  colonel  commanding  a 
geographical  department  cannot  convene  a  general  court- 
martial  unless  assigned  to  such  command  according  to  a  bre- 
vet rank,  held  by  him,  of  general.   XXXYIII,  156  -,  XLI,  496. 

5.  Under  Sec.  1211,  Eev.  Sts.,  an  officer  may  legally  be  as- 
signed to  duty  according  to  his  brevet  rank  for  a  special 
command  or  duty,  and  in  such  case  the  assignment  will  not 
be  effective  generally,  but  only  for  the  purposes  of  such  com- 
mand or  duty  and  during  its  continuance.  Thus  held  that  an 
officer  assigned  to  duty  according  to  his  brevet  rank  ''  while 
in  command  of"  a  certain  department,  could  legally  exercise 
the  authority  and  i)rivileges  of  such  rank  only  when  holding 
such  command,  and  for  the  purposes  of  the  same.    XLII,  21. 

6.  When  an  officer  has  been  duly  assigned  to  duty  or  com- 
mand according  to  a  certain  brevet  rank,  that  rank  becomes 
his  actual  military  rank  for  the  period  of  the  assignment.  He 
is  emi)owered  to  exercise  the  authority  which  belongs  to  such 
rank  under  the  circumstances,  to  wear  the  uniform,  and  to  be 
addressed  by  the  title,  of  such  rank,  &c.  Jleldj  however, 
that  a  colonel,  assigned  to  command  according  .to  a  brevet 


BURGLARY.  135 

rank  of  general,  was  not  entitled  to  the  aids-de-camp  of  a 
general,  (major  or  brigadier,)  but,  as  indicated  in  par.  35, 
Army  Kegulations,  could  be  "  allowed"  the  same  only  "  with 
the  special  sanction  of  the  War  Department'' — in  other 
words,  by  the  authority  of  the  Secretary  of  War.  XLII, 
21. 

See  volunteers  $  3. 


BRIGADE. 

See  seventy-third  ARTICLE. 

ONE  HUNDRED  AND  FOURTH  ARTICLE  $  6. 


BURGLARY. 

Burglary  at  common  law  is  the  breaking  and  entering  of  a 
dwelling  in  the  night  time  with  a  felonious  intent.  Where  a 
soldier  was  brought  to  trial  ui)ou  a  charge  of  "  Burglary," 
with  a  specification  setting  forth  that  he  entered  the  quarters 
of  an  officer  in  the  night,  through  an  open  window,  with 
intent  to  steal,  held  that,  although  the  offence  described  was 
not  a  burglary  in  law — the  essential  element  of  a  breaking 
being  wanting — the  charge  and  specification,  taken  together, 
made  out  a  sufiicient  pleading  of  a  disorder  to  the  prejudice 
of  good  order  and  military  discipline,  under  the  62d  Article 
of  war.^  XXXVIII,  391.  And  similarly  lield  of  an  offence 
charged  as  "  burglary,"  but  described  in  the  specification  as 
consisting  in  the  breaking  and  entering  of  a  post  trader's 
store  in  the  day  time.  XXX,  548.  [See  Sixty  Second  Ar- 
ticle §  8  ;  CHARGE  §6.] 

'  See  G.  0.  M.  O.  205,  Hdqrs.  of  Army,  1876. 


136  '  CADET. 


c. 


CADET. 

1.  An  unemancipated  minor  can  acquire  no  residence  dis- 
tinct from  that  of  bis  father  or  parent.^  So  held  that  minors 
whose  fathers  resided  in  certain  States  and  congressional  dis- 
tricts, could  not,  by  removing  to  and  abiding  in  other  States 
or  districts,  acquire  such  an  'actual  residence'  therein  as  to 
render  them  eligible  for  appointment  as  cadets  under  Sec. 
1315,  Eev.  Sts.2     XXIX,  83  j  XXXI,  313. 

2.  Heldt\\iit  a  minor  whose  father  was  a  foreigner  domiciled 
in  Cuba,  and  who  was  himself  commoraut  in  the  United 
States  only  for  thepuri^ose  of  being  educated,  was  not  eligible 
for  appointment  as  a  cadet  from  a  congressional  district. 
XXXY,  44(3. 

3.  Held  that  the  mere  fact  that  an  officer  of  the  army  was 
on  duty  under  military  orders  in  a  certain  Territory,  did  not 
make  his  minor  son  eligible  for  appointment  as  a  cadet  from 
such  Territory,  the  fact  of  the  father's  being  thus  on  duty 
not  being  sufficient  evidence  of  his  being  a  resident  therein. 
XXX,  528.    [See  Residence.] 

4.  In  view  of  the  provision  of  the  Act  of  1843,  incorporated 
in  Sec.  1315,  Rev.  Sts.,  that  ''  the  corps  of  cadets  shall  consist 
of  one  from  each  congressional  district,"  &c.,  it  has  been  cus- 
tomary, though  the  same  is  not  required  by  law,  for  the  Pres- 
ident, in  appointing  cadets  from  congressional  districts,  to 
appoint  them  \\\)om  the  nomination  of  tlie  members  of  Con- 
gress representing  such  districts  in  the  House  of  Representa- 
tives. But  where  a  member  of  the  Forty  Sixth  Congress, 
representing  a  certain  numbered  district  of  a  State,  nominated 
for  appointment  as  cadet  a  resident  of  a  county  not  within 

*  See  Crawford  v.  Wilson,  4  Barb.  505;  Brown  v.  Lynch,  2 
Bradf.  214 ;  Wheeler  v.  Burrow,  18  Ind.  14 ;  Hiestand  v.  Kims, 
8  Blackf.  345;  Aliens.  Thomasen,  11  Humph.  53a;  Hardy  v. 
De  Leon,  5  Texas,  211 ;  Story,  Coullict  of  Laws,  sec.  4G. 

2  This  opinion  is  concurred  in  by  the  Attorney  General,  in 
XIII,  Opins.  130. 


CADET.  137 

sucli  district  as  previously  constituted,  but  within  a  new  dis- 
trict having  indeed  the  same  number  but  constituted  mostly 
of  different  counties,  and  which  had  been  created  by  the 
State  legislature  in  a  redistrictiug  of  the  State  since  the 
election  of  such  member,  held,  (Aj)ril,  1880,)  that  such  nomi- 
nation could  not  properly  be  accepted  by  the  President  as  a 
basis  for  au  appointment.  This,  for  the  reason  that  the  mem- 
ber, at  the  time  of  the  nomination,  did  not  rei)resent  the  new 
district  containing  the  said  county,  but  said  district  was  in 
fact  represented  in  Congress  by  no  one,  and  could  not  be  so 
represented  till  March  4,  1881,  when  the  Forty  Seventh  Con- 
gress would  commence  to  exist.^    XLII,  601. 

5.  The  State  of  Ohio  having  been  re-districted  by  an  Act 
of  its  Legislature,  held^  (June,  1875,) — 1,  That  the  cadets 
now  at  the  Military  Academy  appointed  from  congressional 
districts  of  Ohio,  should,  where  the  numbers  of  their  districts 
had  been  changed,  be  credited  to  the  new  districts,  so  as  to 
appear  on  the  list  as  representing  the  districts  now  actually 
including  the  towns,  &c.,  which  were  their  places  of  residence 
when  appointed :  2,  That  existing  conditional  appointments 
made  under  Sec.  1317,  Eev.  Sts.,  providing  that  such  appoiut- 
ments  shall  be  made  one  year  in  advance  of  admission  to  the 
Academy,  and  which  accordingly  had  been  made  prior  to  the 
re-districting,  were  valid  and  should  stand;  the  appointees 
being  deemed  entitled  to  admission  at  the  designated  time, 
subject  to  the  prescribed  conditions :  3,  That  future  appoint- 
ments should  be  made  according  to  the  districts  as  newly 
established  and  numbered  5  any  increased  delay  that  might 
thus  be  caused  in  the  falling  in  of  vacancies  for  appointments 
for  particular  districts  being  but  a  necessary  result  of  the  new 
legislation.     XXXIX,  575. 

6.  A  party  was  duly  nominated  and  ai>pointed  as  a  cadet 
for  a  certain  congressional  district  one  year  in  advance  agree- 
ably to  Sees.  1315  and  1317,  Eev.  Sts.  Later,  anoth'^r  party 
was,  by  the  same  member  of  Congress,  nominated  for  a  ^;/'o- 
msional  appointment, — l.  e.,  an  appointment  in  the  event  of 
the  regular  nominee  being  found  disqualified  or  failing  to 
pass  the  examination, — and  was  appointed  accordingly.  Sub- 
sequently, the  regular  nominee  having  resigned  his  appoint- 

^  Compare  opinions  of  Attorneys  General  referred  to  in 
note  to  Contract  §  10. 


138  CAMP  FOLLOWER. 

ment,  a  third  person  was  nominated  in  his  stead  by  the  same 
member,  and,  (nnder  Sec.  1317,  Eev.  Sts.,)  appointed  to  fill  the 
vacancy.  Held  that  this  appointment  was  a  valid  one,  and  that 
the  provisional  appointee  had  no  legal  claim  to  have  received 
the  same.  The  statute  law  does  not  recognize  such  ^^pro- 
visional" ai)pointments  J  the  same  being  resorted  to  in  the  prac- 
tice of  the  War  Department,  as  a  matter  of  convenience,  in 
order  that  there  may  be  a  person  at  hand  to  take  the  i^lace  of 
a  regular  nominee  who  may  fail  at  the  last  moment,  and  the 
embarrassment  of  a  vacancy  occuring  at  that  time  be  thus 
as  far  as  possible  avoided.  The  provisional  ai^pointee  was 
not  entitled  to  be  substituted  for  the  regular  appointee  on  his 
resignation,  and  not  having  been  so  substituted,  but  another 
I)erson  havln  g  been  selected,  he  remained  with  i^recisely  the 
claim  which  he  had  originally,  viz.^  to  present  himself  for 
examination  and  api>ointment  in  case  the  regular  nominee 
was  not  accepted,  the  only  difference  being  that  the  regular 
nominee  had  meanwhile  been  changed.    XLII,  162. 

7.  Where  a  regular  appointee  as  cadet,  having  resigned, 
was  again  nominated  to  till  his  own  vacancy,  the  same  not 
having  meanwhile  been  filled  by  the  appointment  of  another, 
lield  that  the  President  was  empowered,  under  Sec.  1317, 
Kev.  Sts.,  to  re-ai)i)oint  him.    XXXI,  195. 

8.  Cadets  are  amenable  to  trial  by  court  martial  for  violations 
of  the  Kegulations  of  the  Academy,  as  ^'  conduct  to  the  preju- 
dice of  good  order  and  military  discipline.'"     XXXYI,  129. 

9.  In  view  of  the  provisions  of  Sec.  1325,  Eev.  Sts.,  deemed 
a  constitutional  exercise  by  Congress  of  the  power  to  "  raise 
armies,"  (and  so  to  determine  of  what  they  shall  consist,) 
held  that  the  President  would  not  be  empowered  to  reap- 
l^oint  a  cadet,  discharged  as  deficient  ui^on  the  recommenda- 
tion of  the  Academic  Board,  except  under  the  conditions 
indicated  in  the  Section.    XLIII,  372. 

See  pay  AND  ALLOWANCES  ^  14,  note. 

CAMP  FOLLOWER. 

See   sixty-third  ARTICLE  §  1. 
POST  TRADER  M,  4. 

^In  this  connection  may  be  noted  the  opinion  of  the  Solici- 
tor General  of  July  10,  1877,  (XV  Opins.  — ,)  that,  except  for 
the  offence  of  hazing,  specially  made  punishable  by  the  Act 
of  June  23,  1874,  cadets  of  the  Xaval  Academy  are  not  sub- 
ject to  trial  by  court  martial. 


CAPTUEED  PROPERTY.  139 


CAPTURED  PROPERTY. 

1.  It  is  a  general  principle  that  captured  property  of  an 
enemy  with  whom  we  are  at  war  accrues  to  the  United  States. 
The  application  however  of  this  principle  during  the  late 
civil  war  was  afl'ected  by  the  operation  of  certain  Acts  of 
Congress.  Personal  i^roperty,  indeed,  of  the  Confederate 
States,  or  of  one  of  them,  became  on  capture  by  the  federal 
forces,  the  property  Jwre  belli  of  the  United  States.  So  the 
title  to  their  real  estate,  occupied  by  the  U.  S.  Army  at  some 
period  of  the  war  and  held  till  its  end,  was  completed  in  the 
United  States  by  the  subjection  and  dissolution  of  the  hostile 
government,  and  became  i)ublic  property,  subject  to  the  dis- 
position of  Congress.  But  real  estate  of  individual  enemies, 
(including  x)rivate  corporations,)  while  subject  to  be  sold,  &c., 
under  the  Act  of  July  2,  18G4,  could  not  in  general  become 
vested  in  the  United  States  except  through  the  judgment  of  a 
comi)etent  court  confiscating  the  same  upon  proceedings 
instituted  under  the  Act  of  July  17,  1862.  As  to  the  per- 
sonal property  of  individuals,  this,  (though  in  some  instances 
made  the  subject  of  proceedings  for  confiscation,)  was  mostly 
disposed  of  by  and  under  the  Act  of  March  12,  1863,  known 
as  the  '^Captured  and  Abandoned  Property  Act,"  by  which 
such  property,  (except  munitions  of  war  and  other  material 
used  or  intended  to  be  used  in  prosecuting  the  war  against 
the  United  States,  and  which  were  of  course  subject  to  seiz- 
ure by  the  army  and  became  on  capture  the  property  of  the 
United  States,)  was  required  to  be  collected,  sold,  and  the 
proceeds  paid  into  the  Treasury,  subject  to  the  claims  therefor 
of  parties  who  should  establish  their  ownership  of  the  proi>- 
erty  and  the  fact  that  they  had  not  "  given  aid  or  comfort  to 
the  rebellion."^  XVIII,  511 ;  XIX,  162 ;  XXIII,  90 ;  XXVI, 
160  5  XXYIII,  610;  XXIX,  6,  364  j  XLII,  510  j  XLIII,  lU. 

^  See,  under  this  paragraph,  United  States  v.  Padelford,  9 
Wallace,  538;  United  States  v.  Klein,  13  Id.  136;  United 
States  V.  nuckabee,  16  Id.  411;  Haycraft  v.  United  States, 
22  Id.,  81;  Lamar  v,  Browne,  2  Otto,  187;  Williaois  v. 
Brufi'y,  6  Id.  188;  Young  v.  United  States  7  Id.  60;  Ford  v. 
Sui^get,  Id.  594;  Johnson  v.  Dow,  10  Id.  158;  Porte  v.  United 


140  CAPTURED  PROPERTY. 

2.  Held  that  the  property  of  enemies^  captured  jure  helU  in 
a  civil  war,  did  not  belong  to  the  class  of  property  indicated 
in  Art.  Y  of  the  Amendments  to  the  Constitution,  the  taking 
of  which  "for  public  nse  without  just  compensation"  is  pro- 
hibited.   XXX,  231. 

3.  Held  that  a  claim,  by  an  individual,  for  rent  for  the  use 
and  occupation  by  the  United  States,  of  captured  real  estate, 
for  an  alleged  unreasonable  period  after  the  end  of  the  war 
without  commencing  proceedings  for  confiscation,  could  not 
be  allowed  by  an  executive  officer  or  department,  (see  Claims 
§  9 ;)  and  that,  as  such  a  claim  would  not  be  within  the  juris- 
diction of  the  Court  of  Claims,^  the  same  could  be  enter- 
tained only  by  Congress.     XLII,  232. 

4.  The  owner  of  property  captured  jure  belli  is  not  entitled 
to  recover  its  value  under  the  provisions  of  Sec.  3483,  Kev. 
Sts.,  as  being  i)roperty  impressed  in  the  military  service.^ 
XXXVIII,  47G. 

5.  A  loyal  owner  of  property  captured  by  the  enemy  dur- 
ing the  war,  and  afterwards  recaptured  by  the  federal  forces, 
may  have  the  same  turned  over  to  him  by  executive  authority, 
where  clearly  identified  as  belonging  to  him,  and  should  in 
general  be  allowed  to  receive  it  free  from  any  charge  in  the 
nature  of  salvage.^  In  a  case,  however,  in  which  extraordi- 
nary exi)ense  has  been  incurred  in  saving  the  proi^erty,  which 
the  owner  should  equitably  pay  or  contribute  to,  the  Secretary 
of  War  would  not  properly  take  action  in  the  absence  of  spe- 
cific authority  from  Congress.  I,  424,  428,  45G;  XI,  2GGj 
XX,  485.    [Salvage  §  2.] 

G.  Held  that  a  civihan  into  whose  hands  had  come,  at  the 
end  of  the  late  war,  certain  captured  personal  property  of 
the  enemy,  was  not  entitled  to  convert  it  to  his  own  use,  or 
to  demand  compensation  as  a  condition  of  its  surrender  to 
the  U.  S.  authorities.    XXI,  479.    [See  Xintii  Article.] 

States,  Devereux,  1-09 ;  Winchester  v.  United  States,  14  Ct. 
CI.  13;  United  States  v.  A  Tract  of  Land,  1  Woods,  475;  At- 
kinson V.  Central  Ga.  Mfg.  Co.,  58  Ga.  227. 

^  See  Sec.  1059,  Eev.  Sts. ;  Bishop  v.  United  States,  4  Ct. 
CI.  448 ;  Slawsou  v.  United  States,  IG  Wallace,  314. 

^As  to  the  distinction  between  capture  and  impressment, 
see  XI  Opins.  of  Attys.  Gen.  378. 

3  See  Wilson  v.  United  States,  4Ct.  CI.  559. 


CASHIEEING— CESSION  OF  JUEISDICTION.  141 


CASHIERING. 

Cashiering  and  dismissal  were  once  quite  distinct  punish- 
ments in  military  law ;  the  former  involving,  in  addition  to  a 
dishonorable  separation  from  the  service,  a  disability  to  hold 
public  office ;  and  this  difference  was  illustrated  by  the  fact 
that  cashiering  was  sometimes  mitigated  to  dismissal.^  All 
distinction,  however,  between  the  two  forms  has  long  since 
ceased  to  exist  in  our  law ;  cashiering  with  us  meaning  noth- 
ing more  or  other  than  dismissal.  A  sentence  '^  to  be  cash- 
iered"— now  a  rare  form— is  equivalent. to  a  sentence  to  be 
dismissed  the  service.^    lY,  533  5  VIII,  GOl  5  XXIY,  5G3. 

CERTIFICATE  OF  MERIT. 

Keld,  under  Sec.  121G,  construed  in  connection  with  Sec. 
1285,  Rev.  Sts.,  that  the  President  was  authorized  to  grant  a 
certificate  of  merit  only  to  a  soldier  belonging  at  the  time  of 
the  grant  to  a  regiment  of  the  army ;  that  he  was  not  empow- 
ered to  grant  such  a  certificate  to  a  discharged  soldier  and 
civilian,  on  account  of  services  rendered  while  he  was  a  sol- 


dier.3    XLI,  1G8. 


CESSION  OF  JURISDICTION. 

1.  The  mere  fact  of  its  being  the  owner  of  land  situated 
within  a  State  does  not  entitle  the  United  States  to  exercise 
exclusive  jurisdiction  over  the  same  or  of  offences  committed 
thereon,^  nor  does  the  fact  that  the  land  has  been  duly  reserved 

^  See  Hough,  (Practice,)  123-130 ;  James,  377 ;  Simmons,  § 
IIG;  Maltby,  89,  92;  O'Brien,  274-5;  II  Opins.  of  Attys. 
Gen.  280. 

^In  the  code  of  1871  the  term  '^cashiered''  has  been 
retained,  apparently  by  inadvertence,  in  two  Articles,  the  8th 
and  50th. 

^See,  to  a  similar  effect,  the  opinion  of  the  Attorney  Gen- 
eral of  Mav  0,  1878,  (XVI  Opins.—  ;)  also  the  subsequent  G. 
O.  28,  Hdqrs.  of  Army,  1878. 

*  United  States  v.  Stahl,  1  Woolworth,  192,  and  McCahon, 
20G ;  Ex  parte  Sloan,  4  Sawyer,  331-2 ;  Clay  v.  State,  4  Kans!' 


142  CESSION  OF  JURISDICTION. 

for  military  purposes  confer  such  authority.^  Where  the 
United  States  is  the  proprietor  of  the  land  at  the  time  of  the 
admission  of  the  State,  it  may  obtain  such  exclusive  jurisdic- 
tion, by  expressly  reserving  the  same  to  itself  in  the  Act  of 
admission.  Where  this  has  not  been  done,  or  where  the  land 
has  been  purchased  or  otherwise  acquired  by  the  United 
States  subsequently  to  the  admission  of  the  State,  exclusive 
jurisdiction  over  the  same  can  be  vested  in  the  United  States 
only  by  an  act  of  cession  of  such  jurisdiction  on  the  part  of  the 
State,  or  by  the  State's  giving  its  consent  to  the  "jmrchase"^ 
by  the  United  States.  [See  the  terms  of  the  provision  of  § 
17,  sec.  8,  Art.  I  of  the  Constitution.^]  A  mere  consent  by  a 
State,  through  its  legislature,  to  the  "  purchase"  by  the  United 
States  of  land  within  its  limits  is  as  operative  for  the  purpose 
of  vesting  the  exclusive  jurisdiction  as  is  an  express  cession 
of  the  same.^    XLII,  514,  524 ;  XLIII,  234. 

2.  Sec.  355,  Eev.  Sts.,  relating  to  the  expending  of  public 
money  on  land  acquired  hj  the  United  States  within  the 

49.  Much  less  does  the  mere  fact  of  its  being  the  occupant  of 
the  land  give  it  this  authority — as  where  it  occupies  land  as 
a  camp.     United  States  v.  Tierney,  1  Bond,  571. 

^See  the  three  first  cases  cited  in  last  note.  The  fact  that 
the  person  against  whom  the  offence  has  been  committed— as 
the  person  killed  in  a  case  of  alleged  murder — is  an  employee 
of  the  United  States,  adds  nothing  to  its  jurisdictional  au- 
thority,    ^w  parte  Sloan,  supra, 

^Tbe  term  "purchase,"  as  emi^loj^ed  in  the  constitutional 
provision,  (and  also  in  Sec.  355,  Eev.  St§.,  based  thereon,) 
includes  any  mode  by  which  the  United  States  may  acquire 
title,  whether  by  original  ownership,  subsequent  donation,  or 
purchase  in  the  ordinary  acceptation  of  the  term.  See  JSoc 
parte  Hebard,  4  Dillon,  384 :  Vll  Opins.  of  Attys.  Gen.  114, 
121. 

^That  the  term  "exclusive  legislation,"  employed  in  the 
Constitution,  is  equivalent  to  exclusive  jurisdiction,  or  rather 
that  exclusive  jurisdiction  is  a  necessary  incident  of  exclusive 
legislation, — see  VI  Opins.  of  Attys.  Gen.  578 ;  United  States 
V.  Cornell,  2  Mason,  00 ;  Ux  parte  Sloan,  4  Sawyer,  331. 

*See  United  States  v.  Cornell,  2  Mason,  GOj  VI  Opins.  of 
Attys.  Gen.  578 ;  YII  Id.  028,  029 ;  VIII  Id.  30,  104,  387.  A 
State  may  give  such  consent  by  a  single  general  Act,  i)ros- 
pective  in  terms,  and  covering  all  cases  of  future  purchases 
by  the  United  States.  Note,  for  exami)le,  the  Act  of  the  Leg- 
islature of  Texas  of  Ai)ril  4, 1871,  remarked  upon  in  the  opin- 
ion of  the  Attorney  General  of  April  10, 1878,  (XV  Opins.  — .) 


CESSION  OF  JURISDICTION.  143 

States,  requires  tliat  the  United  States  shall  obtain  from  the 
State  a  cession,  (by  consent  to  the  ''purchase,")  of  exclusive 
jurisdiction  over  such  land,  only  when  the  land  is  to  be  im- 
proved by  the  erection  of  a  public  building  or  structure.^ 
Held  that  permanent  dams  and  locks  of  stone  and  timber 
might  properly  be  regarded  as  within  the  description  of  the 
structures  embraced  by  this  statute.     XLII,  524. 

3.  Where  a  State  statute,  in  consenting  to  the  purchase  by 
the  United  States  of  land  within  the  State  and  ceding  to  the 
United  States  jurisdiction  over  the  same,  added  that  such 
jurisdiction  should  be  exercised  '^concurrently  wiW  the  State, 
held  that  this  qualification  was  subject  to  the  objection  that  it 
amounted  to  more  than  the  mere  reservation,  (not  unfrequent,) 
of  the  right  to  serve  upon  the  land  legal  process  for  acts  done 
and  crimes  committed  outside  of  the  same,  and  should  therefore 
be  regarded  as  inconsistent  with  a  grant  of  exclusive  jurisdic- 
tion to  the  United  States  over  such  land ;  ^  further  that  it  so  far 
qualified  the  consent  given  to  the  purchase  as  to  make  it  at 
least  doubtful  whether,  in  view  of  the  provisions  of  Sec.  355, 
Eev.  Sts.,  the  Secretary  of  War  would  be  authorized  to  ex- 
pend an  api^ropriation  which  had  been  made  by  Congress  for 
the  erection  of  public  buildings  on  the  land.    XLIII,  197. 

4.  But  where  a  State  statute,  in  ceding  jurisdiction  to  the 
United  States  over  certain  lands  purchased  Avithin  the  State 
by  the  authority  of  Congress  as  sites  for  public  structures, 
added — "  But  the  State  reserves  the  right  to  execute  process 
lawfully  issued  under  its  authority  withni  and  ux)on  said  sites," 
&c.,  advised  that  such  reservation  might  properly  be  regarded 
as  having  the  same  efl'ect  as  that  indicated  by  Atty.  Gen.  Cush- 
ing  in  VIII  Opins.,  387,  viz.,  as  reserving  merely  the  right  to 
serve  j^rocess  icithin  the  lands  for  acts  done  and  crimes  com- 
mitted ivithout  the  same,  (so  as  to  i)revent  them  from  becom- 
ing an  asylum  for  fugitives  from  justice,)  and  that  the  cession 
might  therefore  j)roperly  be  accepted  as  sufficiently  vesting 
in  the  United  States  the  exclusive  jurisdiction  over  the  prem- 
ises contemx^lated  by  the  Constitution  and  by  Sec.  355,  Eev. 
Sts.     XLII,  569;  XLIII,  234. 

^See  Public  Property — Disposition  of  §  5,  note  3,  infra, 
2  See  United  States  v.  Cornell,  2  Mason,  00;  United  States 

V.  Davis,  5  Id.  350;  YI  Opins.  of  Attys.  Gen.  578;  YII  Id. 

634;  y III  Id.  30,  102,  417. 


144  CHALLENOE— CHAPLAIN. 

5.  The  effect  of  the  possession  by  the  United  States  of  ex- 
clusive jurisdiction  over  land  in  a  State,  occupied  for  public 
puri^oses,  is  i^ractically  to  withdraw  the  persons  stationed  or 
residing  within  the  same  from  the  civil  and  criminal  jurisdic- 
tion of  "the  courts  of  the  State,  and  from  liability  to  the  pro- 
cess of  the  same,  (except  so  far  as  may  legally  have  been 
reserved  by  the  State — see  §  4,  supra^)  as  well  as  from  taxa- 
tion and  other  burdens  of  citizens  of  the  State.  On  the  other 
hand,  such  i)ersons  are  not  entitled  to  enjoy  any  of  the  privi- 
leges of  such  citizens,  as  the  privilege  of  voting,  of  the  use 
of  the  public  schools,  of  the  protection  of  the  police,^  &c, 
XXI,  5G7  5  XXXIII,  8;  XXXIX,  151. 

See  civil  PEOCESS  §  4. 

NATIONAL  CEMETERY  §  2,  3. 
TAX  $  3,  note. 

CHALLEl^GE— TO  FIGHT  A  DUEL. 

See  twenty  SIXTH  ARTICLE. 

CHALLENGE— TO  MEMBER  OF  COURT. 

See  seventy  NINTH  ARTICLE  §  1. 
EIGHTIETH  ARTICLE  ^  6. 
EIGHTY  EIGHTH  ARTICLE. 
ONE  HUNDRED  AND  FIFTEENTH  ARTICLE  $  4. 

CHAPIAIH. 

See  SEVENTY  FIFTH  ARTICLE  $  1. 
JUDGE  ADVOCATE  ^  2. 

^  See,  on  this  general  subject,  the  following  as  the  principal 
authorities :  United  States  v.  Travers,  2  Wheeler  C.  0.,  490 ; 
Do.  V.  Tierney,  1  Bond,  571;  Do.  v.  Stahl,  TV^oolworth,  192,  and 
McCalion,  20G;  Commonwealth  v.  Clary,  8  Mass.,  72  5  Mitchell 
V.  Tibbetts,  17  Pick.,  298;  Opinion  of  Justices,  1  Met.,  580; 
State  V,  Dimick,  12  X.  Ilamp.,  194;  People  v.  Godfrey,  17 
Johns.,  225 ;  Do.  r.  Lane,  Edmonds,  IIG ;  Commonwealth  v. 
Young,  Bright,  302 ;  In  re  O'Connor,  37  Wise.  379 ;  Clay  v. 
State,"  4  Kans.,  49;  Painter  v.  Ives,  4  Neb.,  122;  VI  Opins. 
of  Attys.  Gen  ,  577  ;  VII  Id.,  028 ;  VIII  Id.,  30,  102,  387,  418. 

In  this  connection,  note  a  recent  opinion  of  the  Attorney 
General  of  February  7,  1880,  (XVI  Opins.  — ,)  that  whether 
a  superintendent  of  a  national  cemetery  can  legally  be  required 
to  work  ui)on  the  i)ublic  roads  of  the  State  (in  comi^liance 


CHARGE.  145 


CHARGE. 


1.  In  our  practice,  unlike  tliat  of  the  English  courts-martial, 
a  military  charge  properly  consists  of  two  parts — the  tech- 
nical "Charge"  and  the  "Specification."  The  former  desig- 
nates by  its  name,  particular  or  general,  the  alleged  offence ; 
the  latter  sets  forth  the  facts  supposed  to  constitute  such 
offence.  An  accusation  against  an  officer  or  soldier,  not  thus 
separated  in  form,  would  he  irregular  and  exceptional  in  our 
practice,  and,  till  amended,  would  not  be  accepted  as  a  i>roper 
basis  for  proceedings  under  the  code.    YII,  COO. 

2.  The  same  particularity  is  not  called  for  in  military 
charges  which  is  required  in  indictments.^  The  essentials  of 
a  charge  are :  1.  That  it  shall  be  laid  under  the  proper  Article 
of  war  or  other  statute ;  2.  That  it  shall  set  forth  (in  the 

with  a  law  of  the  State  requiring  all  male  citizens  between 
certain  ages  to  perform  such  work,)  must  depend  upon  whether 
he  resides  upon  land  acquired  by  the  United  States  over 
which  the  State  has  parted  with  its  jurisdiction ;  that  if  the 
jurisdiction  over  the  cemetery  grounds  within  which  the  super- 
intendent resides  has  been  surrendered  to  the  United  States, 
he  is  exempt  from  such  obligation. 

^  In  regard  to  the  proper  form  for  a  military  charge,  Atty. 
Gen.  Gushing,  (VII  Opins.,  603,)  says:  "There  is  no  one  of 
exclusive  rigor  and  necessity  in  which  to  state  military  accusa- 
tions." lie  adds  further:  "Trials  by  court-martial  are  gov- 
erned by  the  nature  of  the  service,  which  demands  intelligible 
precision  of  language,  but  regards  the  substance  of  things 
rather  than  their  forms.  *  *  *  The  most  bald  statement 
of  the  facts  alleged  as  constituting  the  offence,  provided  the 
legal  offence  itself  be  distinctively  and  accurately  described 
in  such  terms  of  precision  as  the  rules  of  military  jurisprudence 
require,  will  be  tenable  in  court-martial  proceedings,  and  will 
be  adequate  ground- work  of  conviction  and  sentence."  So  it 
is  observed  by  Atty.  Gen.  Wirt,  (I  Opins.,  280,)  that  "  all  that 
is  necessary"  in  a  military  charge  is  that  it  be  "sufficiently 
clear  to  inform  the  accused  of  the  military  offence  for  which 
he  is  to  be  tried,  and  to  enable  him  to  prepare  his  defence." 
And  see  Tytler,  209;  Kennedy,  Of).  It  is  ably  remarked  by 
Gould,  (Pleading,  j^.  4,)  that  "all  pleading  is  essentially^  a 
logical  process;"  and  that,  in  analyzing  a  correct  pleading, 
"if  we  take  into  view,  with  what  is  expressed,  what  is  neces- 
sarily supposed  or  implied,  we  shall  tind  in  it  the  elements 
of  a  good  syllogism."  But  it  can  hardly  be  expected  that 
military  charges  in  general  will  stand  this  test. 
10  D 


146  CHARGE. 

specification)  facts  sufficient  substantially  co  constitute  tlic 
particular  offence.  These  essentials  being  observed,  the  sim- 
pler, and  less  encumbered  with  verbiage  and  technical  cerms 
the  charge  is,  the  better,  provided  it  be  expressed  in  clear  and 
intelligible  English.  However  inartificial  a  pleading  may  be, 
it  will  properly  be  held  sufficient  as  a  legal  basis  for  a  trial 
and  sentence,  provided  that  the  charge  and  specification, 
taken  together,  amount  to  a  statement  of  a  military  offence 
either  under  a  specific  Article  or  under  the  general  Article, 
No.  62.     [See  §  6,  infra.]     XXYI,  551  -,  XXYII,  521. 

3.  There  can  be  no  legal  objection  to  charging  an  offence 
as  a  ''Violation  of"  a  particular  Article  of  War,  although,  in 
general,  it  will  be  preferable  to  charge  it  by  its  familiar  and 
received  name — as  "Drunkenness  on  duty,"  ''Misbehavior 
before  the  enemy,"  "Desertion,"  &c.    Y,  77;  YII,  457. 

4.  Where  an  offence  is  clearly  defined  in  a  specific  Article, 
it  is  irregular  and  improper  to  charge  it  under  another  specific 
Article.  So,  where  the  Article  in  which  the  offence  is  defined 
makes  it  punishable  with  a  specific  punishment  to  the  exclu- 
sion of  any  other,  it  is  error  to  charge  it  under  an  Article, 
such  as  the  62d,  which  leaves  the  punishment  to  the  discre- 
tion of  the  court.  II,  51;  XI,  312;  XIY,  599;  XX,  533; 
XXYIII,  575.  On  the  other  hand,  it  is  equally  erroneous  to 
charge  under  a  specific  Article,  making  mandatory  a  j)artic- 
ular  x^unishment,  an  offence  properlj^  charged  only  under  Art. 
62.     I,  463;  XXYII,  413;  XXYIII,  575. 

5.  For  some  time  after  the  enactment  in  1874  of  the  present 
new  Articles  of  War,  charges  were  not  unfrequently  laid  under 
Articles  by  their  old  numbers — as  "Yiolation  of  the  9th," 
(old  number,)  instead  of  the  21st,  (new  number,)  "Article," 
or  "Sleeping  on  post,  in  violation  of  the  46th,"  (old  number,) 
instead  of  the  39th,  (new  number,)  "Article."  Held,  in  such 
cases,  that  the  error  was  one  which  could  only  be  taken  ad- 
vantage of  by  an  objection  in  the  nature  of  a  plea  in  abate- 
ment,— whereupon  indeed  an  amendment  could  at  once  be 
made, — and  that,  in  the  absence  of  such  objection,  the  mistake 
was  to  be  treated  as  iui material  after  finding  and  sentence. 
XXXYII,  313;  XXXYIII,  495,  552. 

6.  Where  a  specific  offence  is  cliarged,  {i.  c,  an  offence 
made  punishable  by  an  Article  other  than  the  general — 62d — 
Article,)  and  the  specification  does  not  state  facts  constituting 


CHAEGE.  147 

such  specific  offence,  the  pleadiDg  will  be  insufficient  as  a 
pleading  of  that  offence.  Legal  effect  may,  however,  he  given 
to  a  pleading  if  the  charge  and  specification  taken  together 
amount  to  an  allegation  of  an  offence  cognizable  by  a  court 
martial  under  Art.  62.  And  in  all  cases, — whatever  be  the 
form  of  the  charge  or  specification, — if  the  two  are  not  incon- 
sistent, and,  taken  together,  make  out  an  averment  of  a 
neglect  or  disorder  punishable  under  this  general  Article,  the 
pleading  will  be  sufficient  in  law  and  will  constitute  a  legal 
basis  for  a  conviction  and  sentence.  XI,  491 ;  XY,  GSO;  XVI, 
551.    [See  Sixty  Second  Article  §  8.] 

7.  It  is  illogical  and  faulty  pleading  to  charge  a  secondary 
offence  in  lieu  of  the  actual  or  principal  offence,  of  which  that 
charged  was  merely  a  consequence  or  incident.  XXYII,  446. 
But  where  the  act  committed  involves  several  distinct  offences, 
the  party  may  properly  be  arraigned  upon  the  same  number 
of  separate  charges.  XXX,  489.  And  all  the  offences  with 
which  an  officer  or  soldier  may  be  at  one  time  chargeable, 
should,  if  practicable,  (and  if  the  same  are  sufficiently  grave,) 
be  charged  and  brought  to  trial  together.  XIY,  40.  Undue 
multiplication,  however,  of  charges,  or  forms  of  charge,  is  to 
be  avoided :  thus  charges  should  not  in  general  be  added  for 
minor  offences  Avhich  Avere  simply  acts  included  in  and  going 
to  make  up  graver  offences  duly  charged.  XY,  441.  It  may, 
indeed,  sometimes  be  expedient  where  the  offences  are  slight 
in  themselves,  and  it  is  deemed  desirable  to  exhibit  a  con- 
tinued course  of  conduct,  to  wait,  before  i^referring  charges, 
till  a  series  of  similar  acts  have  been  committed,  provided  the 
period  be  not  unreasonably  prolonged ;  but  in  general  charges 
should  be  preferred  and  brought  to  trial  immediately  or  pres- 
ently upon  the  commission  of  the  offences.  Anything  like  an 
accumulation^  or  saving  up,  of  charges,  through  a  hostile  anim  us 
on  the  part  of  the  accuser,  is  discountenanced  by  the  senti- 
ment of  the  service.^     XII,  348. 

8.  The  prosecution  is  at  liberty  to  charge  an  act  under  two 
or  more  forms,  where  it  is  doubtful  under  which  it  will  more 
proi)erly  be  brought  by  the  testimony.-  In  the  military  prac- 
tice the  accused  is  not  entitled  to  call  upon  the  prosecution 

'  See  G.  0.  M.  O.  71,  Hdqrs.  of  the  Army,  1879. 
^ ''  For  the  ])uri)ose  of  meeting  the  evidence  as  it  may  trans 
phe  "     State  v.  Bell,  27  Md.  6'75. 


148  CHARGE. 

to  ^^  elecV  under  which  charge  it  will  proceed  in  such  or  indeed 
any  case.     XXXIII,  306. 

9.  Where  there  are  two  sets  of  charges  against  an  accused, 
they  should  if  i^racticable  be  consolidated,  and  one  trial  be 
had  upon  the  whole,  instead  of  two  trials,  one  ux>on  each  set. 
XXX,  265.  But  after  the  accused  has  been  arraigned  upon 
certain  (*.harges,  and  has  pleaded  thereto,  and  the  trial  on  the 
same  has  been  entered  upon,  new  and  additional  charges, 
which  the  accused  has  had  no  notice  to  defend,  cannot  be 
introduced  or  the  accused  required  to  plead  thereto.  Such 
charges  should  be  made  the  subject  of  a  separate  trial,  upon 
which  the  accused  may  be  enabled  properly  to  exercise  the 
right  of  challenge  to  the  court,  and  effectively  to  plead  and 
defend.  XXIY,  577.  [As  to  the  further  objection  to  such 
charges,  that  the  court  would  not  be  qualified  to  try  them, 
under  its  oath,  see  Eighty  Fourth  Article  §  2.] 

10.  Such  loose  and  indefinite  forms  of  charge  as  "Fraud," 
" Worthlessness,"  "Inefficiency,"  "Habitual  Drunkenness," 
and  the  like,  will  be  avoided  by  good  pleaders.  XIX,  280  j 
XXVIII,  253;  XXXVIII,  640.  '  But  such  charges,  in  connec- 
tion with  si:)ecifications  setting  forth  actual  military  neglects 
or  disorders,  (not  properly  chargeable  under  specific  Articles,) 
may  be  sustained  as  equivalent  to  charges  of  "  Conduct  to 
the  prejudice  of  good  order  and  military  discipline."  [See 
§  6  sujpra.]  But  a  charge  of  "  Worthlessness,"  with  specifica- 
tions setting  forth  repeated  instances  of  arrests,  confinements 
in  the  guardhouse,  or  trials  and  convictions  for  slight  ofii^nces, 
of  the  accused,  held  an  insufficient  pleading ;  such  instances 
not  constituting  military  offences,  but  merely  the  punishments 
or  penal  consequences  of  such  ofiences.  (What  is  really 
called  for  in  such  a  case  is  a  discharge  of  the  soldier  under  the 
4th  Article  of  War.)  XXV,  664;  XXVIII,  253;  XXXIII, 
169,  208, 281,  285, 345,  416.  A  specification  averring  a  general 
incapacity  induced  by  habitual  intoxication,  does  not  set  forth 
a  military  ofi'ence.  The  accused  in  such  a  case  should  be 
charged  with  the  acts  of  drunkenness  committed,  as  separate 
anddistinctinstancesof  ofience.^  XXXIII,  458.  [See  Sixty 
SECOND  Article  §  9.j 

11.  While  the  fact  that  a  soldier  has  been  repeatedly  tried 
and  punished  for  military  offences  is  not  of  itself  an  offence 

^  See  G.  O.  11,  War  Dept.,  1873. 


CHARGE.  149 

for  which  he  can  properly  be  brought  to  trial,  since  such  a 
proceeding  would  be  a  violation  in  substance  of  the  102d 
Article  of  War,  prohibiting  a  second  trial  for  the  same  offence, 
[see  Sixty  second  Article  §  9,]  yet  where  a  soldier  has 
committed  a  certain  specific  act  of  offence,  there  is  no  legal 
objection  to  stating  in  the  specification,  in  charging  it,  that 
the  accused  has  been  previously  convicted  of  an  offence  or 
offences  of  the  same  species.  The  objection  to  this  form  of 
pleading  arises  only  out  of  the  jirobable  difficulty  of  i^roving 
the  previous  con^ictious  in  case  the  soldier  i^leads  not  guilty. 
Our  code,  unlike  the  British,  has  made  no  special  provision 
for  the  proof  of  previous  convictions,  which  would  therefore 
in  general  have  to  be  shown  by  the  production  of  copies  of 
the  original  records,  the  obtaining  of  which  might  entail  a 
considerable  delay,  «&c.,  to  the  prejudice  of  the  interests  of 
the  service.  Whether,  therefore,  the  fact  that  the  accused 
has  been  previously  convicted  of  a  similar  offence  shall  be 
alleged,  by  way  of  inducement,  in  a  specification  charging  a 
specific  offence,  may  in  general,  in  the  present  state  of  the  law, 
well  be  left  to  depend  upon  the  further  question,  whether 
such  allegations  can  be  proved  without  undue  delay,  expense, 
or  embarrassment  to  the  service.  In  our  practice  it  has  not 
been  usual  to  allege  prior  convictions.     XLII,  603. 

12.  The  specification  should  be  appropriate  to  the  charge. 
A  charge  of  ''Conduct  to  the  prejudice  of  good  order  and 
military  discipline,"  with  a  specification  setting  forth  a  viola- 
tion of  a  specific  Article,  is  an  irregular  and  defective  plead- 
ing, and  so  of  course  is  a  charge  of  a  specific  offence  with  a 
specification  describing  not  that  but  a  different  specific  offence, 
or  a  simple  disorder  or  neglect  of  duty.     XXIY,  198. 

13.  A  mis-naming  or  mis-description  of  the  rank  of  the  ac- 
cused in  the  specification,  should  be  taken  advantage  of  by 
exception  in  the  nature  of  a  plea  in  abatement.  [See  Plea,  § 
8.]  Where  not  objected  to,  the  error  is  immaterial  after  sen- 
tence, provided  the  accused  is  sufficiently  identified  by  the 
plea,  testimony,  &c.  XXXYII,  482.  It  is  not  essential  to 
state  in  a  specification  the  full  christian  name  of  the  accused, 
or  other  party  required  to  be  indicated.  Only  such  name  or 
initial  need  be  given  as  wiU  be  sufficient  unmistakably  to 
identify  the  party.    XXIY,  299. 

14.  Where  a  specification  to  a  charge  preferred,  by  a  supe- 


150  CHARGE. 

rior  against  an  inferior  officer,  instead  of  referring  to  the 
former  in  the  third  person,  alleged  that  the  accused  addressed 
abusive  language  to  ''???e,"  and  committed  an  assault  upon 
"me,"  without  naming  or  otherwise  indicating  the  subject  of 
the  abuse  or  assanlt,  held  that  such  a  form,  though  supported 
by  some  of  the  English  precedents,  was  not  sanctioned  by 
our  i^ractice,  and  that,  on  objection  being  made  to  the  same 
by  the  accused,  the  court  would  i^roperly  either  require  that 
the  specification  be  amended,  or  that,  in  incorporating  the 
charge  in  the  record,  the  name  of  the  preferring  officer  be 
added.    111,429. 

15.  Where  a  specification  alleged  that  the  accused  was  ab- 
sent without  leave  at  various  times  between  two  dates,  twenty 
days  apart,  held  that  the  same  was  defective  and  subject  to 
exception  as  being  double^  each  such  absence  being  a  substan- 
tive and  distinct  offence.  ^  X,  471.  But  where  the  specifica- 
tion to  a  charge  of  violation  of  the  60th  Article  alleged  the 
presentation  by  the  accused  of  a  fraudulent  claim  for  rations 
furnished  for  recruits  and  also  for  lodgings  famished  for  the 
same  recruits  at  the  same  time,  held  that  the  specification 
related  to  one  transaction  and  was  not  therefore  to  be  neces- 
sarily regarded  as  double  or  defective,  in  view  of  the  liberal 
rules  of  pleading  applicable  to  military  charges.     X,  392. 

IG.  A  specification,  in  alleging  the  violation  of  an  order 
which  has  been  given  in  writing,  or  of  any  written  obliga- 
tion— as  an  oath  of  allegiance,  parole,  &c. — should  preferably 
set  forth  the  writing  verbatim^  or  at  least  state  f\x\\j  its  sub- 
stance, and  then  clearly  detail  the  act  or  acts  which  consti- 
tuted its  supx)osed  violation.    Ill,  049. 

17.  The  time  and  ][)lace  of  the  commission  of  the  offence 
charged  should  properly  be  averred  in  the  specification  in 
order  that  it  may  appear  that  the  offence  was  committed 
within  the  period  of  limitation  fixed  by  the  one  hundred  and 
third  Article,  and  also  within  the  territorial  jurisdiction  of  a 
military  court.    These  averments  should   also  be  made  with 

^In  the  military,  as  in  the  civil,  practice  double  charges — 
i.  e.  charges  setting  forth  two,  (or  more,)  distinct  offences — 
are  properly  condemned,  and  in  sundry  cases  the  conviction 
and  sentence  have  been  disapproved  on  account  of  the  duplleity 
of  the  pleadings.  See  G.  0.  M.  O.  80,  War  Dept.  1875;  G. 
O.  3, 83,  Dept.  of  the  Missouri,  1863  j  do.  49,  Dept.  of  the  Ohio, 
1804. 


CHARGE.  151 

reasonable  certainty  in  order  to  enable  the  accused  to  under- 
stand what  particular  act  or  omission  he  is  called  upon  to 
defend.^  I,  4G3;  T,  013;  IX,  IGO;  XXYI,  574.  A  reason- 
ably exact  allegation  of  the  time  is  also  important  in  some 
cases — especially  those  of  desertion  and  absence  without 
leave — in  order  that  the  accused,  if  subsequently  brought  to 
trial  for  the  same  offence,  or,  what  is  the  same  thing  in  law, 
(see  OxE  HUXDRED  AND  SECON^D  ARTICLE  §  2,)  for  an  offence 
included  in  the  original  offence,  may  be  enabled,  (by  an, ex- 
hibition of  the  record,)  properly  to  plead  a  former  acquittal 
or  conviction  of  that  offence.     YII,  348,  513. 

18.  AThere  the  exact  time  or  place  of  the  commission  of  the 
offence  is  not  known,  it  is  frequentlj^  preferable  to  allege  it 
as  having  occurred  ^'on  or  about  ^^  a  certain  date  or  time,  or 
"af  or  near^^  a  certain  locality,  rather  than  to  aver  it  as  com- 
mitted on  a  particular  day  or  between  two  specified  days,  or 
at  a  particular  place.  There  is  no  defined  construction  to  be 
l>laced  upon  the  words  ''on  or  about''  as  used  in  the  allega- 
tion of  time  in  a  specitication.  The  phrase  cannot  be  said  to 
cover  any  precise  number  of  days  or  latitude  in  time.  It  is 
ordinarily  used  in  military  pleading  for  the  purpose  of  indi- 
cating some  peilod,  as  nearly  as  can  be  ascertained  and  set 
forth,  at  or  during  which  the  offences  charged  are  believed  to 
have  been  committed — in  cases  where  the  exact  day  cannot 
well  be  named.  And  the  same  is  to  be  said  as  to  the  use  of 
the  words  '^at  or  near"  in  connection  with  the  averment  of 
place.  These  terms  ^'on  or  about"  and  "at  or  near'-  are, 
however,  not  unfrequently,  (though  unnecessarily,)  employed 
in  practice  where  the  exact  time  or  i^lace  is  known  and  can 
readily  be  alleged.     XXYI,  437. 

19.  The  same  exactness  in  the  averment  of  time  is  in  gen- 
eral scarcely  required,  where  the  offence  charged  is  one  of 
omission^  as  where  it  is  one  of  the  commission  of  a  specific 
act.  It  is  suflicient  in  the  former  case  to  allege  that  the 
offence  occurred  beticeen  certain  named  dates  not  unreasonably 

^  As  to  the  latitude  allowable  in  the  allegation  of  time  in 
military  x)leadings,  compare  I  Opins.  of  Attys.  Gen.  295-G. 

In  the  civil  practice,  "  nothing  is  better  settled  than  that 
proof  of  guilt  is  not  confined  to  the  day  mentioned  in  the 
indictment.  It  may  extend  back  to  any  period  previous  to 
the  finding  of  the  bill  and  within  the  statutory  limit  for  i^ros- 
ecuting  the  offence."    McBryde  v.  State,  34  Ga.  203. 


152  CHARGE. 

separated.  XXX,  488.  So,  an  oifence  of  commission,  which 
probably  was  not  completed,  or  may  not  have  been  completed 
on  any  i)articular  day,  may  be  similarly  charged.  Thus  Jield 
that  the  allegations  of  time  and  place  were  sufiicient  in  a 
specification  in  which  it  was  set  forth  that  the  offence  charged 
(which  consisted  in  an  improper  disposition  of  public  prop- 
erty) was  committed  by  the  accused  "while  en  route  between 
Austin,  Texas,  and  Waco,  Texas,  between  the  5th  and  25th 
days  of  May,  1867."     XXV,  100. 

But  where  it  was  alleged  in  a  specification  that  the  accused 
was  drunk  on  duty  at  some  time  or  times  during  a  period  of 
seventy  days,  Jield  that  the  specification  did  not  give  sufiicient 
notice  to  the  accused  of  the  specific  offence  which  he  was 
required  to  defend,  and  was  therefore  uncertain  and  insuf- 
ficient.^   I,  463. 

20.  Where  time  or  place  is  omitted  to  be  averred,  or  is 
averred  without  sufiicient  definiteness,  and  the  defect  is  ex- 
cepted to  by  the  accused  on  being  called  upon  to  plead,  the 
court  will  properly  direct  that  an  amendment  be  made.  But 
where  in  either  such  case  no  objection  is  interposed  by  the 
accused,  the  proceedings  will  be  sufiicient  in  law  provided  the 
time  and  place  of  the  ofience  can  be  made  out Vith  reasonable 
certainty  from  the  testimony  in  connection  with  the  specifica- 
tions. If  otherwise,  the  proceedings  will,  Avliere  i^racticable, 
properly  be  returned  to  the  court  for  correction,  or,  where  this 
cannot  be  done,  will,  in  general,  properly  be  disapproved. 
XIV,  635;  XVI,  298;  XX,  280;  XXVI,  412.  And  where  the 
ofience  is  alleged  to  have  been  committed  on  a  particular  day, 
and  the  evidence  shows  that  it  was  committed  on  quite  a  dif- 
ferent day, — in  such  case,  provided  time  is  not  of  the  essence  of 
the  offence,  and  the  specific  act  charged  is  sufiiciently  iden- 
tified by  the  other  testimony,  the  variance  between  the  alle- 
gation and  the  proof  will  not  constitute  a  fatal  defect,  and 
need  not  induce  a  disai)i)roval  of  the  sentence  where  there 
has  been  a  conviction.  A  return,  however,  of  the  record  to  the 
court,  for  correction,  if  practicable,  would  well  be  resorted  to 
by  the  reviewing  officer  before  taking  final  action.     XIII,  30' . 

21.  While  it  is  in  general  irregular  to  plead  matter  of  evi- 
dence, there  is  no  objection  to  noting  in  brief  in  the  specifica- 

^  Compare  cases  in  G.  O.  193,  Army  of  the  Potomac,  1862; 
do.  98,  Dept.  of  Xew  Mexico,  1862. 


CHARGE.  153 

tiou  tbe  immediate  result  or  effect  of  the  act  cliarged,  as  a 
circumstance  of  description  illustrating  the  character  and 
extent  of  the  offence  committed.  Thus  while  a  homicide,  if 
amounting  to  murder,  and  capital  under  Sec.  5339,  Eev.  Sts., 
or  by  the  law  of  the  State,  &c.,  cannot  as  such  be  made  the 
subject  of  a  military  charge  m  time  of  peace,  (see  Sixty  Sec- 
ond Article  §  1,)  yet  a  capital  homicide,  where  it  has  been 
committed  in  connection  with  or  as  a  consequence  of  a  specific 
military  offence  charged  against  the  accused, — as,  for  exam- 
l)le,  '^  Mutiny,"  or  '^  Offering  violence  to  a  superior  officer," — 
may  properly  be  stated  in  the  conclusion  of  the  specification, 
as  matter  of  aggravation  and  as  indicating  the  animus  of  the 
accused  or  the  amount  of  force  employed.     XXXIV,  478. 

22.  Properly  to  warrant  the  joinmg  of  several  i)ersons  in 
the  same  charge  and  the  bringing  them  to  trial  together 
thereon,  the  offence  must  be  such  as  requires  for  its  commis- 
sion a  combination  of  action  and  must  have  been  committed 
by  the  accused  in  concert  or  in  pursuance  of  a  common  in- 
tent. The  mere  fact  of  their  committing  the  same  offence 
together  and  at  the  same  time,  although  material  as  going  to 
show  concert,  does  not  necessarily  establish  it.  Thus  the  fact 
that  several  soldiers  have  absented  themselves  together  with- 
out leave,  will  not,  in  the  absence  of  evidence  indicating  a 
conspiracy  or  concert  of  action,  justify  their  being  arraigned 
together  on  a  common  charge,  for  they  may  merely  have  been 
availing  themselves  of  the  same  convenient  opportunity  for 
leaving  their  station.    Y,  479  j  XII,  439 ;  XXIY,  4G8. 

Desertion,  of  which  the  gist  is  a  certain  personal  intent, 
cannot  i)roperly  be  charged  as  a  joint  offence.^  Where  two 
or  more  soldiers  have  deserted  together  as  the  result  of  a 
concerted  plan,  they  may  properly  be  jointly  charged  with 
^'  conspiracy  to  desert,  to  the  prejudice  of  good  order  and  mil- 
itary discipline;"  or  each,  in  addition  to  being  charged  with 
desertion,  may  also  be  severally  charged  with  engaging  in 
such  conspiracy.  In  the  absence  of  such  additional  charge, 
the  fact  of  concert  may  of  course  be  put  in  evidence  under  the 
charge  of  desertion  as  illustrating  the  animus  of  the  act  com- 
mitted.    XXXII,  254,  333 ;  XXXIII,  211,  434. 

'  See  G.  O.  78,  War  Dept.,  1872,  issued  by  the  Secretary  of 
War  in  accordance  with  opinions,  i^reviously  given,  of  the 
Judge  Advocate  General. 


154  CHARGE. 

23.  Military  cliarges,  tliougli  commonly  originating  with. 
military  persons,  may  be  initiated  by  civilians :  indeed  it  is 
but  performing  a  public  duty  for  a  civilian,  who  becomes  cog- 
nizant of  a  serious  oflence  committed  by  an  officer  or  soldier, 
to  bring  it  to  the  attention  of  the  proper  commander.  So  a 
charge  may  originate  with  an  enlisted  man.  But,  by  the 
usage  of  the  service,  all  military  charges  must  be  formally 
preferred  by,  i.  e.  authenticated  by  the  signature  of,  a  com- 
missioned officer.  Charges  proceeding  from  a  person  outside 
the  army,  and  based  upon  testimonj^  not  in  the  possession  or 
knowledge  of  the  military  authorities,  should  in  general  be 
required  to  be  sustained  by  affidavits  or  other  reliable  evi- 
dence, as  a  condition  to  their  being  adopted.  XVI,  423  ;  XLI, 
672 ;  XLII,  202. 

24.  Any  otHcer  may  prefer  charges :  an  officer  is  not  dis- 
qualified irom  preferring  charges  by  the  fact  that  he  is  himself 
under  charges  or  in  arrest.  I,  407  ;  Y,  348 ;  XVI,  68.  Charges 
should  be  i)referred  to  the  authority  empowered  to  convene 
the  court  for  their  trial.  XLII,  202.  The  signing  of  charges, 
like  orders,  with  the  name  of  an  officer,  adding — ^'  by  the 
order  of"  his  commander,  is  unusual  and  objectionable. 
Charges,  where  not  signed  voluntarily  by  the  officer  by  whom 
they  are  preferred,  are,  in  practice,  usually  subscribed  by  the 
judge  advocate  of  the  court.    XXXIV,  598. 

25.  In  cases  where  charges  preferred  against  an  officer  are 
apparently  susceptible  of  a  reasonable  explanation,  it  is  not 
unusual,  especially  where  the  charges  are  preferred  by  an 
inferior  against  a  superior,  to  afford  the  officer  charged  an 
opportunity  to  make  exi)lanation  before  it  be  determined 
whether  to  bring  him  to  trial.     XX,  12. 

26.  In  general,  charges  can  regularly  and  properly  be 
ordered  to  be  tried,  or  transmitted  for  trial  to  the  court,  only 
by  the  authority  of  the  officer  convening  the  court,  or  that  of 
his  superior.  An  inferior  to  the  convening  officer  cannot 
properl5^  refer  charges  to  the  court  for  trial  except  under 
some  specific  or  general  authority  received  from  that  officer.^ 


^  This  rule,  though  not  always  insisted  upon  in  practice, 
has  been  repeatedlj^  enjoined  in  express  terms  by  department 
commanders.  See,  for  example,  G.  O.  67,  Dept.  of  Arkansas, 
1864;  do.  S6,  Dept.  of  Dakota,  1869;  do.  8,  Dept.  of  Tex:as, 
1874. 


CHARGE.  155 

The  fact,  however,  that  a  court  has  proceeded  to  the  trial  of 
charges,  referred  to  it  without  due  authority  by  a  commander 
inferior  to  the  one  who  convened  the  court,  cannot  affect  the 
legaUty  of  the  finding  or  sentence  in  the  case.  XXII,  502 ; 
XXYI,  1G7. 

27.  A  withdrawal  of  charges  constitutes  no  legal  bar  to 
their  being  subsequently  revived  and  re-preferred.  Charges, 
however,  once  formally  withdrawn,  will  not  in  general  pro- 
perly be  revived  except  upon  new  material  evidence  being 
obtained.  XI,  202  5  XXYIII,  370.  Charges  once  accepted 
as  a  sufficient  basis  for  action,  by  the  commander  competent 
to  convene  a  court  for  their  trial,  cannot  properly  be  with- 
drawn except  by  his  authority.    XXI,  50. 

2S.  How  far  charges  may  be  amended  by  the  judge  advocate 
before  the  organization  of  the  court  depends  mainly  upon  his 
authority,  general  or  special,  to  make  amendments.  [See 
Judge  Advocate  §  10.]  After  the  arraignment,  a  mendments 
of  form  may  always  be  made,  with  the  assent  of  the  accused  or 
by  the  direction  of  the  court ;  and  so  may  slight  amendments 
of  substance  not  so  modifying  the  pleading  as  to  make  it  a 
charge  of  a  new  and  distinct  offence.  An  amendment  so  sub- 
stantial as  materially  to  modify  the  '•'  matter'-  before  the  court, 
will  not  in  general  be  authorized,  (see  Eighty  Tourth  Arti- 
cle §  2,)  and  any  amendment  whatever  of  substance  should  be 
allowed  by  the  court  with  caution  and  subject  to  the  right  of 
the  accused  to  apply  for  a  continuance.  [See  Xi^^ety  Third 
Article  §  4.]  XXIV,  513.  [As  to  the  authority  of  the  court 
or  judge  advocate  to  strlJce  oitt  or  tcitlidraw  a  charge  or  specifi- 
cation, see  Court  Martial,  I  §  7;  Judge  Advocate  §  10.] 

29.  A  list  of  the  proposed  witnesses  is  no  part  of  the  mil- 
itary charge,  though  such  a  list  may  properly  and  is  not 
unfrequently  appended  to  a  charge.  In  serving  upon  the 
accused  a  copy  of  the  charges,  it  is  not  essential,  though  the 
better  practice,  to  add  a  copy  of  the  list  of  witnesses  where 
one  is  appended  to  the  original  charges.  Ai)pending  such  a 
list  does  not  preclude  the  prosecution  from  called  witnesses 
not  named  therein.    XXY,  350.     [See  Witness  §  7.] 

See  twentieth  ARTICLE  v>  1. 

TWENTY  first  ARTICLE  $  2,  3,  7. 

sixtieth  article  $  7,  14. 

ARREST,  I  vS  7. 
FINDING  ^S  1,  2. 


156      CHIEF  MUSICIAN— CIVIL  EMPLOYMENT   OF  ARMY. 


CHIEF   MUSICIAN. 

1.  A  "chief  musician^'  is  not  au  officer  but  an  enlisted  man, 
(see  Act  of  March  3,  1869,  c.  124,  s.  Sj  and  Sec.  1342,  Eev. 
Sts. ;)  and,  not  being,  (like  a  hospital  steward  or  ordnance 
sergeant, — see  par.  895,  Army  Eegs.,)  specially  exempted 
from  trial  by  a  regimental  or  garrison  court,  is  subject  to  the 
same,  for  offences  within  the  Jurisdiction  of  such  court,  equally 
as  to  trial  by  a  general  coart-martial.     XXXI,  212. 

2.  The  chief  musician  of  a  regiment  is  an  enlisted  man,  but 
not  a  non-commissioned  officer.  He  is  also  enlisted,  not  to 
perform  the  duties  of  a  soldier,  but  exi^ressly  as  an  "  instruc- 
tor of  music."  [Act  of  March  3, 1869,  c.  124,  s.  5  j  Sees.  1099, 
1102,  1106,  Eev.  Sts.]  So  held  that  he  could  not  legally  be 
reduced  to  the  ranks,  either  by  sentence  or  by  order. 
XXXIII,  33. 

CITIZENSHIP. 

See  ALASKA  $  1. 
ALIEN. 

DESERTION  $8. 
PARDON  §  2. 


CIVILIAN  — AMENABILITY  OF,  TO  MILITARY  JURISDIC- 
TION. 

See  forty  FIFTH  ARTICLE  §  1. 

SIXTIETH  ARTICLE  ^  13,  and  note. 
SIXTY  THIRD  ARTICLE. 
COURT  MARTIAL,  II  $  7,  8,  and  note,  9,  15. 
MILITARY  COMMISSION,  II. 
NATIONAL  CEMETERY  §  6. 
PAYMASTER'S  CLERK. 
POST  TRADER  ^  4. 
SPY  M- 


CIVIL  EMPLOYMENT  OF  THE  ARMY. 

See  ARMY— EMPLOYMENT  OF  FOR  CIVIL  PURPOSES. 
POSSE  COMITATUS. 


CrVIL  OFFICE.  167 


CIVIL  OFFICE. 

1.  Section  1222,  Eev.  Sts.,  (Act  of  July  15,  1870,)  provides 
that — ''No  officer  of  tbe  Army  ou  the  active  list  sliall  hold 
any  civil  office,  whether  by  election  or  api)ointment,  and  every 
such  officer  who  accepts  or  exercises  the  functions  of  a  civil 
office  shall  thereby  cease  to  be  an  officer  of  the  Army,  and 
his  commission  shall  be  thereby  vacated."  Held  that  this 
provision  was  an  exercise  by  Congress  of  its  constitutional 
power  "  to  raise  armies,"  which  includes  the  power  to  deter- 
mine of  whom  they  shall  consist.^   XXX,  556.  [See  Cadet  §  9.] 

2.  Under  the  provisions  of  Sec.  1222,  Eev.  Sts.,  an  officer 
on  the  active  list,  who  accepted,  held,  or  exercised  the  func- 
tions of  a  civil  office  after  July  15,  1870,  ceased  to  be  an  offi- 
cer of  the  army.2    XXXV,  M. 

3.  A  civil  office^  in  the  sense  of  Sec.  1222,  Eev.  Sts.,  is  a 
permanent  i^ublic  charge  or  function,  with  a  defined  tenure 
and  duty,  created  or  authorized  by  public  law,  and  "  conferred 
by  the  appointment  of  government."  Office  is  distinguished 
from  temporary  employment.  To  constitute  a  j)osition  an 
office^  it  is  immaterial  whether  any  emolument  be  attached  to 
it.=^    XXX,  555;  XXXVIII,  31.     [Sec  Oath,  IY  §  1,  2.] 

4.  Held  that  the  term  civil  office  emi)loyed  in  Sec.  1222,  Eev. 
Sts.  included  federal,  State,  county,  or  municipal  office.  XXX, 
555;  XXXY,  54;  XXXYl,  477-  XXXYIII,  31;  XLII,  30G. 
So  held  that  an  officer  of  the  army  could  not,  without  thereby 
vacating  his  military  office,  accept  or  exercise  the  office  of 

^  See  United  States  v,  Bainbridge,  1  Mason,  71 ;  In  re  Eiley, 
11  Benedict,  408. 

^  See  the  opinion  of  the  Attorney  General,  (XIY  Opins.  200,) 
that  the  General  of  the  Army  could  not  exercise  the  office  of 
Secretary  of  War  without  ceasing  to  be  an  ofiicer  of  the  army. 

^'As  to  what  constitutes  office,  as  distinguished  from  em- 
ployment, and  public  office  as  distinguished  from  office  in 
general,  see  United  States  r.  Maurice,  2  Brock.  103;  United 
States  V.  Ilartwell,  0  Wahace,  385;  United  States  v.  Bloom- 
gart,  2  Benedict,  35(i;  XIII  Opins.  of  Attys.  Gen.  310;  also  the 
recent  cases  of  United  States  v.  Germaine,  9  Otto,  508;  In  re 
Corhss,  11  E.  I.  040;  In  re  Hathaway,  71  X.  York,  238;  AYilcox 
V.  People,  90  Ills.  186;  Throop  i\  Langdon,  40  Mich.  G73. 


158  CIVIL  OFFICE. 

Park  Commissioner  of  the  City  of  Philadelphia,  (XXX,  555  j) 
or  of  Trustee  on  the  Board  of  Trustees  of  the  Cincinnati 
Southern  Eailroad/  (XXXVIII,  31  j)  or  of  commander  of  a 
battalion  of  State  militia,  (XLIl,  306;) — these  being  offices 
created  by  State  statute.  So  held  that  a  medical  officer  of 
the  army  could  not  accept  the  office  of  a  county  physician, 
and  retain  his  military  office.     XXXVI,  477. 

But  where  a  State  statute  authorized  the  emiiloyment,  by 
the  Board  of  Water  Commissioners  of  a  city,  of  a  person  as 
an  engineer,  and  the  position  was  offered  to  an  engineer 
officer  of  the  army,  held  that  such  officer,  in  accepting  the 
same,  by  the  authority  of  the  Secretary  of  War,  would  not 
be  affected  by  the  pro^^sion  of  Sec.  1222,  Eev.  Sts.;  such  a 
position  being  in  fact,  as  it  was  designated  in  terms  in  the 
statute,  an  employment  merely,  and  one  of  a  temi)orary  and 
incidental  character,  and  thus  properly  distinguished  from 
an  office.  XXXYII,  540.  And  similarly  held^  later,  in  regard 
to  the  emi^loyment  of  the  same  officer,  (under  a  similar  stat- 
ute,) as  a  consulting  engineer  to  the  State  Engineer;  the 
function  of  the  latter  being  the  office  established  by  the  stat- 
ute, while  that  of  the  former  was  but  an  incidental  employ- 
ment.   XLIII,  307. 

5.  So,  held  that  an  officer  of  engineers  detailed  by  the  Pres- 
ident to  perform,  or  assist  in,  engineering  work,  for  State  or 
municipal  authorities,  at  their  request,  could  not  be  said  to  ex- 
ercise a  civil  office^  and  was  thus  not  affected  by  the  x>rovision 
of  Sec.  1222,  Eev.  Sts. ;  the  only  question  to  be  determined 
in  cases  of  such  employment  being  that  indicated  by  Sec.  1224, 
viz.  whether  such  work  would  '  require  the  officer  to  be  sepa- 
rated from  his  cori)s  or  otherwise  interfere  with  the  perform- 
ance of  his  military  duties  proj^er.'^    XXXVII,  540,  542. 

^  Concurred  in  by  the  Solicitor  General  in  opinion  of  March 
25,  1870,  (XV  Opins. .) 

^  It  is  held  by  the  Attorney  General  in  an  opinion  of  May 

21,  1880,  (XVI  Opins. ,)  that  Vvhile  to  detail  an  officer  of 

the  active  list  for  duty  with  Professor  King  on  the  U.  S.  Geo- 
logical Survey  would  not  be  to  invest  him  with  a  civil  office^ 
yet  that,  as  such  survey  is  a  civil  tcorJc,  an  officer  could  not, 
in  view  of  the  provisions  of  Sec.  1224,  Eev.  Sts.,  legally  be 
detailed  for  duty  thereon  if  the  effect  of  such  detail  would  be 
to  separate  him  from  his  regiment,  cori)s,  ♦^c,  or  otherwise 
interlere  with  the  performance  of  his  military  duties  proper. 

It  is  further  held  by  the  Attorney  General  in  an  opinion  of 


CIVIL  OFFICE.  159 

6.  Sec.  1222,  Rev.  Sts.  does  not  appl3'  to  enlisted  men.  But 
except  i)erliaps  in  a  rare  case — as,  for  exami^le,  a  case  of  an 
ordnance  sergeant,  or  other  member  of  tlie  non-commissioned 
staff,  established  at  a  permanent  station,  it  must  in  general 
be  quite  incompatible  with  the  status  and  obligation  of  an 
enlisted  man  to  hold  any  civil  office  or  emi)loyment,  even  one 
held  for  the  mere  puri)ose  of  qualifying  the  party  to  adminis- 
ter oaths,  as  that  of  notary  public.  XXXVIII,  GIG. 
•  7.  Held  that  the  position  of  master  machinist  at  the  Spring- 
field Arsenal,  conferred  by  the  appointment  of  the  com- 
manding officer,  was  not  properly  a  federal  office,  but  an 
employment  si mi)ly,  so  that,  upon  the  appointee  being  elected 
a  member  of  the  School  Committee  and  of  the  Board  of  Water 
Commissioners  of  Springfield,  he  could  not  be  said  to  come 
within  the  application  of  the  Executive  Order  of  Jan.  28, 1873, 
declaring  that  persons  holding  federal  office  should,  if  accept- 
ing state,  territorial  or  municipal  office,  be  deemed  to  vacate 
and  resign  the  federal  office.    XXXYI,  223. 

8.  Officers  on  the  retired  list  are  not  afiected  by  the  i:)rovis- 
ions  of  Sec.  1222,  Eev.  Sts.^  They  may  hold  any  State,  county 
or  municipal  office,  and  receive  the  emoluments  of  the  same 
without  their  military  ofiice  or  i)ay  being  in  any  manner 
afiected.  ]S"or  will  their  holding  military  office  under  the 
United  States  operate  as  a  disability-  to  their  receiving  office 
or  pay  under  the  State,  in  the  absence  of  any  State  statute 
creating  such  disability.  XXXI,  13G;  XLI,  G62;  XLIII, 
1G5.     [But  see  §§9  and  10,  infra.] 

9.  Held  that  the  prohibition  of  Sec.  18G0,  Eev.  Sts.,  that 
"no  person  belonging  to  the  army  or  navy  shall  be  elected  to 
or  hold  any  civil  office  or  appointment  in  any  Territory,''^ 
included  officers  on  the  retired  as  well  as  on  the  active  list  of 
the  army.     XLII,  111. 

10.  By  a  provision  of  the  Act  of  March  30,  1868,  c.  38,  s.  2, 
(now  incorporated  in  Sec.  1223,  Eev.  Sts.,)  it  was  declared — 

Dec.  G,  1877,  (XY  Opins. ,)  that  in  view  of  the  provisions 

of  Sees.  1221  and  20G2,  Eev.  Sts.,  considered  together,  the 
President  may  ])roperly  detail  an  officer  of  the  active  list  of 
the  army  as  Indian  agent,  only  when  such  detail  will  not  sep- 
arate him  from  his  regiment,  corps,  &C.,  or  otherwise  interfere 
with  his  regular  military  duties. 

^To  a  similar  efi'ect,  see  opinion  of  the  Attorney  General  of 
June  11,  1877,  (XY  Opins.  — .) 


IGO  CIVIL  PROCESS. 

"that  any  officer  of  the  army  or  navy  who  shall,  after  the 
passage  of  this  Act,  accept  or  hold  any  ai)pointiuent  in  the 
diplomatic  or  consular  service  of  the  government,  shall  be  con^ 
sidered  as  having  resigned  his  said  ofiice,  and  the  place  held 
by  him  in  the  military  or  naval  service  shall  be  deemed  and 
taken  to  be  vacant."  Held,  in  the  case  of  an  officer  of  the 
army  who  at  the  date  of  this  statute  was  holding  a  dij)lomalic 
position,  that  his  military  office  must  be  regarded  as  vacated 
unless  he  forthwith  resigned  his  dii)lomatic  office  on  being 
advised  of  the  passage  of  the  Act;  that  he  could  not  legally 
be  allowed  to  continue  to  hold  his  military  office  for  a  certain 
time  till  his  services  in  the  diplomatic  office  could  conven- 
iently be  dispensed  with.     XXYI,  G55. 

11.  Held  that  the  Act  of  March  30, 18(38,  c.  38,  s.  2,  (now  Sec. 
1223,  Eev.  Sts.,)  applied  to  officers  on  the  retired  list  equally 
and  alike  with  officers  on  the  active  list  of  the  army,  and  that 
an  officer  on  the  retired  list  who,  subsequently  to  the  passage 
of  said  Act,  accepted  an  appointment  in  the  diplomatic 
service,  became  eo  instanti  separated  from  the  army, — his 
military  office  ceasing  thereupon  to  exist, — and  could  be 
re-admitted  to  the  army  only  by  a  new  appointment  according 
to  the  Constitution.^    XXIX,  1. 

CIVIL  PEOCESS. 

1.  It  is  well  settled,  upon  considerations  of  public  policy,  that 
funds  in  the  possession  of  a  pajamas ter  of  the  army  or  other 
disbursing  agent  of  the  United  States,  due  as  pay,  salary,  or 
wages,  to  an  officer  or  soldier  of  the  army,  or  other  govern- 
ment employee,  cannot  be  attached  in  a  suit  instituted  against 

^  See  opinion  of  the  Attorney  General  of  Juue  11,  1877, 
(XV  Opins.  — .)  In  a  later  opinion  of  Dec.  11,  1877,  (XY 
Opins.  — ,)  the  proviso  of  s.  2  of  the  Act  of  March  3,  1875, 
c.  178,  is  construed  by  the  same  authority  as  expressing  the* 
intent  of  Congress  to  so  limit  the  application  of  the  i)rovision 
of  March  30,  18GS,  (Sec.  1223,  Kev.  Sts.,)  that  it  should  not 
aft'ect  the  status  of  any  ohicer  borne  on  the  retired  list  at  the 
date  of  the  lirst  named  Act,  March  3d,  1875. 

That  a  resi{)nation  of  a  second  office,  the  acceptance  of 
which  has  oi)erated  to  vacate  an  office  previously  lield,  will 
not  work  a  re-investiture  of  the  original  office — see  In  re 
Corliss,  11  E.  I.  G43. 


CIVIL  PROCESS.  IGl 

such  officer,  &c.,  by  a  private  creditor.^  XX,  413;  XXIII, 
550;  XXVI,  406;  XXVIII,  47;  XXXIII,  8;  XXXIV,  26. 
Where  indeed  the  pay  due  has  been  x>aid  over  to  a  third 
person  as  the  authorized  agent  or  attorney  of  the  party  enti- 
tled to  receive  it,  it  may  be  attached  by  the  garnishee  process 
in  the  hands  of  such  person.     VIII,  403. 

2.  Held  J  on  the  analogy  of  the  principle  protecting  an 
officer's  pay  from  being  taxed  by  the  authorities  of  a  State, 
(see  Tax  §  1,)  that  the  necessary  and  proper  baggage  of  an 
officer  travelling  on  duty,  of  not  greater  amount  than  allowed 
by  the  Army  Eegulations  to  be  transported  with  him  at  the 
I)ublic  exi^euse,  was  properly  exemi^t  from  attachment  for  his 
private  debts.  An  officer,  however,  can  not  be  allowed  to 
claim  such  an  exemption  to  an  unreasonable  extent,  and 
should  he  assume  to  transi)ort  or  i)rocure  to  be  transported 
with  him  any  considerable  amount  of  baggage  greater  than 
that  permitted  by  the  Regulations,  he  woidd  justly  become 
liable  to  the  consequences  of  the  abuse  of  his  privilege.  In 
such  a  case  he  could  not  claim  to  be  sustained  by  the  gov- 
ernment in  resisting  an  attachment  or  execution  levied  upon 
his  effects.    XXXV,  484. 

3.  Held  that  the  personal  property  of  an  officer  required  tp 
be  possessed  and  used  by  him  in  the  regular  performance  of  his 
military  duties — as,  for  examj^le,  his  sword,  or,  in  a  case  of  a  cav- 
alry officer,  his  horse — could  not  legally  be  seized  upon  an  at- 
tachment or  execution  issued  from  a  State  court.   XXXIII,  8. 

4.  The  legality  of  the  service  of  the  process  of  a  State  court 
at  a  military  post  depends,  (as  to  its  original  authority,)  upon 
the  question  whether  the  sovereignty  of  the  soil  resides  wholly 
in  the  United  States,  (either  by  virtue  of  a  reservation  of  the 
same  by  the  United  States  upon  the  admission  of  the  State,  or 
of  its  subsequent  surrender  by  the  State,)  or  is  shared  by  the 
State  government.  Where,  by  an  act  of  cession  of  the  legisla- 
ture of  a  State  in  which  a  military  reservation  or  jDost  is  situated, 

^Buchanan  v.  Alexander,  4  Howard,  20;  Averill  i\  Tucker, 
2  Cranch,  0.  C.  544;  Derr  i\  Lubey,  1  McArthur,  187;  XIII 
Opins.  of  Attys.  Gen.  b(S(S,  And  the  same  principle  is  applied 
to  moneys  due  from  municipal  corporations.  Hawtho^  r.  St. 
Louis,  11  Mo.  59 ;  Burnham  v.  Fond  du  Lac,  15  Wis<;.  193 ; 
Wilson  v.  Bk.  of  La.  oo  Ga.  98 ;  Pruitt  v.  Ai'mstrong,  66  Ala. 
306;  Boone  Co.  i\  Keck,  31  Ark.  387.  '  ] 

11  D 


162  CIVIL  PROCESS. 

exclusive  jurisdiction  over  the  same  has  become  uncoudition' 
ally  vested  in  the  United  Sta»l:es,  as  contemplated  by  Art.  I, 
Sec.  8  §  17  of  the  Constitution,  no  process  issued  from  the 
State  courts  can  legally  be  served  thereon,  but  only  process 
issued  from  the  courts  of  the  United  States  can  be  there  exe- 
cuted. Where,  however,  in  ceding  jurisdiction,  the  State  has 
reserved  to  itself  the  right,  not  unfrequentlj^  reserved  under 
the  circumstances,  (and  which  it  is  often  for  the  advantage  of 
the  United  States  to  have  reserved,  since  otherwise  the  post 
might  become  an  asylum  for  criminals  —  see  Cession  of 
Jurisdiction  §  4.)  to  ser\'e  within  the  premises  civil  and 
criminal  process  on  account  of  rights  accrued,  obligations 
incurred,  or  crimes  committed  in  the  State  but  outside  of  the 
premises, — then  the  writs  of  the  State  tribunals  may  be  exe- 
cuted on  the  land  in  the  class  of  cases  thus  excepted.  Of 
course  where  there  has  been  no  cession  of  jurisdiction  by  the 
State,  its  officials  have  the  same  authority  to  serve  the 
process  and  mandates  of  its  courts,  and  its  courts  have  the 
same  jurisdiction  over  acts  done  and  crimes  committed,  within 
the  military  i:>ost  as  elsewhere  in  the  State ;  the  fact  of  the 
ownership  or  occupation  of  the  land  by  the  United  States 
having  no  eftect  to  except  it  from  the  operation  of  the  State 
laws.^  XYI,  514;  XXI,  567;  XXXIII,  8.  [See  Cession  of 
Jurisdiction  §  1.] 

5.  Where  a  military  post  or  reservation  is  situated  in  a 
Territory,  the  Territorial  courts  are  authorized  to  issue  process 
for  the  arrest  of  officers  or  soldiers  of  the  command  charged 
with  crime,  or  to  cite  them  to  appear  before  them  as  defend- 
ants in  civil  actions,  or  to  attach,  rei^levy  ui)on,  or  take  in 
execution  any  i^roperty  belonging  to  them  within  the  posts 
&c.,  not  specially  exempted  from  legal  seizure.  This  for  the 
reason  that  the  courts  in  which  is  vested  the  judicial  power 
of  a  Territory  are  not  the  courts  of  a  sovereignty  distinct 
from  the  United  States  but  are  the  creatures  of  Congress,^ 

1  See  authorities  referred  to  in  note  to  Cession  of  Juris- 
diction §  5. 

2  ''A  Territory  is  not  properly  sovereign.  It  is  an  organiza- 
tion jftirough  and  by  means  of  which  Congress  for  a  time  gov- 
erns a  particular  portion  of  the  country.  Its  rights  are  those 
which  are  set  forth  in  the  organic  Act."  Opinion  of  the 
Attorney  General  of  August  2,  1878,  (XVI  Opins.  — .) 


CIVIL  PROCESS.  163 

being  establislied  by  it  directly,  or  indirectly  by  its  authority 
through  the  Territorial  legislature,  under  the  provision  of  the 
Constitution,  (Art.  lY,  Sec.  3  §  2,)  empowering  Congress  "  to 
make  all  needful  rules  and  reguUitions  respecting  the  Terri- 
tory belonging  to  the  United  States."  Thus  while  officials 
charged  with  the  service  of  the  process  of  such — as  indeed 
of  any — courts  would,  in  comity,  properly  refrain  from  entering 
a  military  post  for  the  iiurpose  of  serving  process  therein,  or 
at  least  from  making  the  service,  till  formal  permission  for  the 
purx^ose  had  been  sought  and  obtained  from  the  commanding 
officer,  yet,  on  the  other  hand,  officers  commanding  military 
posts  in  the  Territories  should  certainly  interpose  no  obstacle 
to  the  due  service  within  their  commands  of  the  legal  process 
of  the  Territorial  courts.^    XXYIII,  1 ;  XXXIX,  541. 

6.  It  is  settled  that  a  State  court  can  have  no  authority  to 
enjoin  the  United  States  judiciary  from  executing  their  judg- 
ments, or  from  x^roceeding  with  actions  of  law  x^ending  before 
them.^  Similarly  held  that  a  State  Court  was  not  emx)owered 
to  enjoin  an  executive  dex^artment  or  officer  of  the  United 
States  from  performing  the  contracts  of  the  United  States, 
and,  accordingly  that  an  injunction  issued  from  a  State  court 
X^rohibiting  an  officer  of  the  army,  charged  with  the  duty  of 
X)a3ing  to  a  contractor  a  certain  sum  of  money  due  him  under 
a  contract  between  him  aiul  the  United  States,  from  x^aying 
said  sum,  would  legally  and  x^roperly  be  disregarded  hj  such 
officer.^    XLII,  128. 

^  See  the  ox^inion  of  the  Judge  Advocate  General  x)ublished 
in  G.  O.  30,  Hdqrs.  of  Army,  1878,  in  connection  with  YII 
Ox>ins.  of  Attys.  Gen.  504. 

^McKim  V.  Yoorhies,  7  Cranch,  270;  Duncan  v.  Darst,  1 
Howard,  300 ;  City  Bk.  v.  Skelton,  2  Blatch.  20 ;  Kiggs  v. 
Johnson  Co.,  0  Wallace,  100;  United  States  v.  Council  ot  Keo- 
kuk, Id,  514 ;  Marix^osa  Co.  v.  Garrison,  20  How.  Pr.  448 ; 
English  V.  Miller,  2  Ilich.  Eq.  320 ;  Chapin  v.  James,  11 E.  I.  80. 

^  See  the  subsequent  conlirmatory  ox)inion  of  the  Attorney 
General  in  this  case,  of  January  29,  1879.  xniblished  in  G.  O. 
3,  Ildqrs.  of  Army,  1879.  In  an  earlier  ox)inion  of  the  same 
authority,  of  January  3,  1870,  (XY  Opins.  — ,)  it  was  held 
that  as  a  State  can  not  by  its  judicial  xu'ocess  legally  obstruct 
or  indirectly  interfere  with  the  operations  of  the  L".  S.  govern- 
ment, a  State  court  could  not  be  authorized  to  enjoin  a  con- 
tractor with  the  United  States  from  receiving  payments  under 
his  contract  and  thus  hinder  him  in  the  due  x^erformance  of 
the  same. 


1G4  CIVIL  KIGHTS — CLAIMS. 

7.  Where,  in  time  of  peace,  a  U.  S.  Marshal  of  a  Territory, 
under  color  of  a  formal  warrant,  made  an  arrest  of  a  civilian, 
and  an  officer  of  the  army  thereupon  assumed  to  release  him 
by  military  force  on  the  theory  that  the  arrest  had  been  made 
outside  the  Marshal's  district,  held  that  the  act  of  the  officer 
was  wholly  unauthorized,  and — an  indictment  having  been 
found  against  him  in  a  United  States  court — advised  that  he 
be  required  to  surrender  himself  to  the  U.  S.  Attorney  or 
Marshal  for  trial.    XXVI,  468. 

See  pay  AND  ALLOWANCES  §  7. 


CIVIL  RIGHTS. 

A  party  by  whom  a  colored  person  is  caused  to  be  deprived 
of  any  of  the  rights  guaranteed  by  the  provisions  of  Sec.  1977, 
Eev.  Sts.,  is  liable  not  only  to  a  civil  action  in  the  U.  S.  Cir- 
cuit Court,  ''  for  redress,"  under  the  Act  of  April  20,  1871,  c. 
22,  s.  1,  (Sec.  1979,  Eev.  Sts.,)  but  also  to  criminal  prosecu- 
tion, in  the  U.  S.  District  Court  and  punishment  by  fine  and 
imprisonment,  under  the  Act  of  May  31,  1870,  c.  116,  s.  17, 
(Sec.  5510,  Eev.  Sts.)    XXI,  678. 

CLAIMS.^ 

1.  Under  the  law  and  practice  governing  the  executive 
departments,  a  head  of  a  department  is  held  not  to  be  in  gen- 
eral empowered,  without  specific  statutory  authority  for  the 
Xiurpose,  to  reopen,  (except  for  the  correction  of  an  error  in 
calculation,)  a  claim  once  duly*  settled  by  his  department,  in 
the  absence  of  new  and  material  evidence  clearly  entitling  the 
claimant  to  an  additional  allowance.^   So  where  the  Secretary  of 

^  The  reason  of  the  restricted  authority,  (illustrated  under 
this  Title,)  of  the  Executive  department  in  the  allowance  of 
claims  may  be  found  in  the  i)rincii>le  of  i)ublic  law,  as  ex- 
pressed by  Miller  J.,  in  the  case  of  The  Floyd  Acceptances, 
7  Wallace,  676,— that  "  in  our  structure  of  government  all 
I)Ower  is  delegated  and  defined  by  law : "  *  *  *  "we  have 
no  officers,  from  the  President  doAvn  to  the  most  subordinate 
^gent,  who  does  not  hold  office  under  the  law,  with  prescribed 
duties  and  limited  autliority." 

-  See,  as  among  the  principal  authorities  on  this  point,  United 
States  V.  Bk.  of  Metropolis,  15  I'eters,  378 ;  IV  Opins.  of  Attys. 
Gen.  356;  V  Id.  125 ;  X  Id.  259;  XII  Id.  358,  388;  also  Opins. 
of  June  15,  1877  and  Jany.  11,  1878,  in  XV  Id.,  — . 


CLAIMS.  165 

War,  under  authority  expressly  given  liim  by  Act  of  Congress, 
had  entertained  and  adjusted  the  account  and  claim  for  mili- 
tary transportation  of  a  Railroad  Comi^any,  and  had  settled  the 
same  by  the  allowance  of  a  sum  which  was  paid  and  accepted 
as  a  final  award,  held  that  his  authority  over  the  claim,  in  the 
absence  certainly  of  new  and  controlling  evidence  on  the 
merits,  was  to  be  regarded  as  exhausted^  and  that  without 
new  authority  from  Congress,  he  would  not  be  empowered  to 
reopen  the  claim  for  the  purpose  of  allowing  further  credits 
to  the  claimant.^  XLII,  332.  So  held,  that,  in  the  absence 
both  of  new  evidence  and  new  statutory  authority,  the  Sec- 
retary of  War  would  not  be  empowered  to  reopen  and  recon- 
sider a  claim  for  the  repayment  of  a  certain  sum,  (paid  as 
commutation  money  by  a  party  who  claimed  to  have  been 
illegally  drafted,)  the  question  of  the  allowance  of  which  had 
been  duly  considered  by  a  former  Secretary',  (under  a  statute 
authorizing  him  to  repay  the  same  if  deemed  to  be  justly 
due,)  and  had  been  unfavorably  determined,  ten  years  before. 
And  this,  though  the  correctness  of  such  determination  was 
considered  to  be  doubtful ;  the  proper  recourse  of  the  claim- 
ant in  such  a  case  being  to  Congress.    XLII,  357. 

2.  An  executive  official  cannot,  of  his  own  authority,  appro- 
priate the  money  of  the  United  States  for  the  purpose  of  sat- 
isfying a  claim.  So  held  that  the .  Secretary  of  War  could 
have  no  authority  to  reimburse  a  claimant  for  the  amount  of 
a  tax  assessed  upon  him  by  the  military  authorities  during 
the  war,  and  since  paid  into  the  Treasury,  whether  or  not  the 
same  w^as  legally  exacted,  but  that  Congress  must  be  appUed 
to  for  the  necessary  action.    XYIII,  66S. 

3.  A  claim,  though  deemed  by  the  Secretary  of  War  to  be 
probably  just,  cannot  in  general,  in  the  absence  of  any  appro- 
priation for  its  payment,  or  other  authority  to  allow  the  same, 
properly  be  entertained  by  him.  And  where  to  pass  upon  a 
claim  must  be  clearly  quite  futile,  a  consideration  of  its  merits 
will  in  general  be  out  of  place,  and  the  claimant,  without 
being  heard  thereon,  will  properly  be  referred  to  the  depart- 

^This  opinion,  in  support  of  its  conclusion,  cites  lY  Opins. 
of  Attys.  Gen.  356;  Y  Id.  125;  X  Id.  250;  XII  Id.  388,— 
authorities  which  the  Attorney  General,  in  a  concurring  opin- 
ion of  January  29, 1880,  (XYI  Opins.  — ,)  refers  to  as  "  singu- 
larly pertinents 


3  6G  CLAIMS. 

roent  of  the  government  empowered  by  law  to  take  specific 
action  in  liis  case.    XLI,  214. 

4.  The  government  will  in  general  recognize  assignments 
of  claims  to  moneys  in  its  hands  due  and  payable  to  individ- 
uals, so  far  as  to  consent  to  pay  over  the  amount  to  the 
assignee,  where  the  assignment  is  made  according  to  law,  viz. 
Sec.  3477,  Eev.  Sts.^  But  parties  representing  opposing 
interests  cannot,  by  presenting  to  a  head  of  a  department 
conflicting  claims  to  such  money,  comi)el  him  to  become  a 
stakeholder  for  them  or  an  arbitrator  uj^on  the  merits  of  their 
demands.  Where  there  is  any  doubt  as  to  whom  the  money 
should  be  i)aid,  the  claimants  should  i)roi)erly  have  recourse 
to  Congress  or  the  courts.  XIX,  2GG.  [And  compare  Pub- 
lic Property,  disposition  of,  &c.  §  10.] 

5.  Xotwithstanding  the  equitable  princij^le  that  interest  is 
an  incident  of  a  debt,  the  rule  is  well  settled  that  the  United 
States  is  not  in  general  bound  to  pay  interest  on  claims, 
whether  arising  out  of  contractor  otherwise.^  XXI,  504.  In 
the  absence  of  statutory  authority,  a  military  officer,  in  enter- 
ing into  a  contract  as  the  representative  of  the  United  States, 
would  not  be  emi^owered  to  stipulate  with  the  contractor  that, 
in  case  payments  due  him  under  the  contract  were  delayed 
beyond  a  certain  time,  he  should  be  entitled  to  claim  interest 
thereon.     XXXII,  (300. 

0.  The  Secretary  of  War,  in  the  absence  of  authority  from 
Congress,  is  not  empowered  to  allow  a  claim  for  unliquidated 
damages;  the  term  ''damages"  being  here  used  in  its  legal 
sense.  In  general,  in  the  absence  of  a  specific  api^ropriation 
by  Congress  for  the  purpose,  no  executive  or  military  officer 
can  legally  pay  or  allow  to  an  individual  a  sum  of  money  not 
exjiressly  stipulated  to  be  paid  to  him  by  the  terms  of  a  law- 
ful contract.  A  claim  for  an  amount  not  fixed  by  express 
contract,  or  capable  of  being  fixed  according  to  its  terms,  but 

*  Assignments  of  claims  not  made  as  prescribed  in  this  Sec- 
tion are  declared  thereby  to  be  '*  absolutely  null  and  void." 
As  illustrating  the  eftect  of  this  statute,  see  opinions  of  the 
Attorney  General  of  October  23,  1878,  and  February  7,  1879, 
{XVI  Opins.  —  .) 

'  See  I  Opins.  of  Attys.  Gen.  555 ;  II  Id.  4G3  ;  III  Id.  039 ; 
IV  Id.  130,  292  ;  V  Id.  72,  105, 138,  351 ;  VI  Id.  533  ;  VII  Id. 
523  5  IX  Id.  59 ;  XIV  Id.  30 ;  Todd  v.  United  States,  Deve- 
reux,  95  j  United  States  v.  McKee,  1  Otto,  450. 


CLAEMS.  167 

based  upon  an  alleged  implied  contract  or  an  alleged  wrong 
done  the  claimant,  is  a  claim  for  unliquidated  damages,  and 
cannot  legally'  be  allowed,  of  its  own  authority,  by  an  execu- 
tive department  of  the  government.  [See  Contract  §  1.] 
Claimants  for  unliquidated  damages  must  have  recourse  to 
Congress  or,  in  a  limited  class  of  cases,  to  the  Court  of  Claims. 
XXXII,  433;  XXXY,  111;  XXXVII,  233;  XXXIX,  417. 

Thus  held  that  the  Secretary  of  War  was  not  emi)owered  to 
allow  a  claim  of  a  contractor  for  damages  for  the  non-i)erform- 
ance  of  a  contract  on  the  part  of  the  United  States,  no  such 
damages  being  stipulated  for  in  the  contract.'  XXXII,  432. 
So  Jield  that  the  Secretary  of  War  was  not  empowered,  in 
the  absence  of  statutory  authority,  to  allow  a  claim  for  the 
use  and  occupation  of  buildings  taken  possession  of  and 
occupied  by  the  military  authorities  without  contract  or 
agreement  as  to  rent,  or  a  claim  for  injury  done  to  such 
buildings,  but  that  the  claimant  must  have  recourse  to  Con- 
gress, (or  the  Court  of  Claims,)  for  his  reasonable  comi)ensa- 
tion.  XXXVII,  534.  Similarly  held  that  the  Secretary  of 
War  was  not  empowered  to  allow  the  claim  of  a  citizen,  who 
had  been  i^ermitted  to  make  certain  improvements  ujjou  pub- 
lic land,  to  be  indemnified  on  account  of  alleged  injury  to  his 
property  and  business  caused  by  the  extending  of  the  limits 
of  a  military  reservation  over  the  land  occupied  by  him. 
XLII,  592.  So  held  that  the  Secretary  of  War  was  not 
empowered,  (of  his  own  authority  and  discretion,)  to  allow  a 
claim  for  indemnity  for  his  alleged  wrongful  arrest  and 
imprisonment  as  a  deserter,  made  by  a  party  who  claimed  to 
have  been  arrested  by  mistake  for  the  real  offender,  (XXXVI, 
644;)  or  a  claim  for  his  arrest  and  detention  as  a.  deserter 
made  by  a  party  claiming  to  have  been  illegally  drafted, 
(XIV,  405;  XXI,  122;)  or  a  claim  for  an  alleged  wrongful 
arrest  and  confinement  made  hj  a  i3risoner  of  state,  or  sus- 
pected person  in  time  of  war,  (XV,  129 ;  XIX,  1G6;  XXXVI, 
522 ; )  or  a  claim  for  reimbursement  by  a  military  employee  for 
loss  of  wages  during  a  period  of  an  arrest  and  trial  by  court  mar- 
tial, the  conviction  in  his  case  having  been  held  to  be  invali- 
dated by  reason  of  a  defect  in  the  proceedings,  (XIV,  225;) 
or  a  claim  for  the  value  of  personal  property  illegally  appro- 

'  See  IV  Opins.  of  Attys.  Gen.  327  ;  VI  Id.  499,  516 ;  IX  Id. 
81 ;  XIV  Id.  24,  183. 


168  CLAIMS. 

priated  by  a  soldier,  (XLII,  2905)  or  a  claim  for  tlie  vajue  of 
property  taken  or  destroyed  by  the  army  during  a  war* 
XXXIII,  130,  353. 

[But  separate  considerations  contribute  to  preclude  the 
entertaining  or  allowance  of  claims  for  unliquidated  damages 
arising  out  of  a  state  o/icar.     See  §  0,  infra.] 

7.  The  declaration  in  the  5tli  Amendment  to  the  Constitu- 
tion, that  ^  i)rivate  property  shall  not  be  taken  for  public  use 
without  just  compensation,'  adds  nothing  to  the  authority  of 
the  Secretary  of  War  to  allow  a  claim  for  compensation  for 
real  or  personal  prox)erty  taken  for  the  use  of  the  army  or  of 
his  department.  Congress  alone,  (or  in  some  cases  the  Court 
of  Claims,)  can  authorize  the  payment  of  the  compensation 
here  intended,  and  in  the  absence  of  authority  from  Congress, 
it  would  be  quite  beyond  the  i^rovince  of  an  executive  oMcer 
to  assume  to  i^ass  final  judgment  ui)on  the  merits  of  such  a 
claim.     XXXVII,  7. 

8.  Held  that  the  provision  of  Sec.  3480,  Eev.  Sts.,  making 
it  unlawful  to  pay  certain  claims  against  the  United  States 
to  persons  who  '^  promoted,  &c.,  the  late  rebellion,"  created 
a  i)ersonal  disability  only,  which  could  not  operate  against 
the  heirs  of  x)arties  thus  disqualified.    XXXIX,  417. 

9.  Without  special  authority  for  the  purpose  conferred  by 
Congress,  the  executive  branch  of  the  government  cannot  be 
empowered  to  i)ay  any  claims,  in  favor  of  the  '''loyaV  owners, 
for  property  destroyed  or  captured  by  the  enemy,  or  taken, 
destroyed,  or  damaged  by  the  federal  troops,  or  api^ropriated 
for  the  use  of  the  federal  army  by  the  military  authorities ; 
or  for  land  or  buildings  occupied  for  military  i:>urposes ;  or 
for  land  or  i^roperty  occupied  or  used  in  making  fortifications 
or  otherwise  in  the  common  defence — during  the  late  war, 
and  in  the  absence  of  authorized  express  contract.  Claims, 
however,  of  this  class,  where  the  taking  or  use  of  the  property 
for  a  public  purpose  has  been  justified  by  a  necessity  of  the 
service  incident  to  a  public  emergency,  (and  the  officer  mak- 
ing the  seizure,  &c.,  is  thus  reliev^ed  from  being  treated  as  a 
trespasser  and  made  personally  amenable  in  damages',)  yet 
may,  in  view  of  the  constitutional  provision  for  the  rendering 
of  just  compensation  for  i)rivate  i)roperty  taken  for  x)ublic 

^  See  Mitchell  v.  Harmony,  13  Howard,  115 ;  United  States  v. 
Eussell,  13  Wallace,  023,  Parham  v.  The  Justices,  9  Ga.  341; 
Grifdn  v,  Wilcox,  21  Ind.  380;  Clark  v.  Mitchell,  04  Mo.  507. 


CLAIMS.  169 

use,  be  sued  and  recovered  upon  in  the  Court  of  Claims, 
where  within  its  statutory  jurisdiction.  In  such  cases  the 
obligation  thus  created  "  raises  an  imi)lied  promise  on  the 
part  of  the  United  States  to  reimburse  the  owner."  ^  XX, 
525,  5985  XXII,  304;  XXVI,  52,  242;  XXXYI,  1. 

[In  view  of  the  great  luimber  of  claims  of  "  loyal "  persons 
for  compensation  for  property  appropriated  or  destroyed  dur- 
ing the  late  war.  Congress  from  time  to  time  made  special  pro- 
vision for  the  investigation  and  allowance  of  certain  claims 
of  this  nature ;— as  by  the  Act  of  July  4,  18G4,  (see  §  10 
infra;)  the  "Captured  and  Abandoned  Property  Act,'-  of 
March  12,  18G3,  authorizing  the  recovery  of  the  iwoceeds  of 
certain  propert^^  seized  and  sold;  and  the  Act  of  March  3, 
1871,  s.  2,  establishing  the  "Southern  Claims  Commission."] 

10.  As  to  the  classes  of  claims  for  quartermaster's  and  sub- 
sistence stores  authorized  to  be  settled  by  the  Act  of  July  4, 
18G4,  (as  amended  by  subsequent  Acts,^  and  now  incorpo. 
rated  in  Sees.  300,  A  and  300,  B,  Eev.  Sts.)  it  was  held  by 
the  Judge  Advocate  General  as  follows : 

a.  That  the  term — '•''All  claims  of  loyal  citizens  in  States  not 
hi  rebellion'^''  meant  claims  not  only  of  "loyal"  claimants  but 
claims  originating  in  States  which  were  not  in  insurrection ; 
and  that  if  the  claim  did  not  so  originate  it  was  immaterial 
where  the  claimant  resided  or  that  the  claim  was  meritorious.^ 
XVII,  590;  XIX,  538;  XX,  318,  355;  XXI,  19,  132,  243, 
248.  On  the  other  hand,  a  claim  originating  in  a  State  "not 
in  rebellion"  was  held  within  the  Act,  although  the  State  or 
locality  where  it  originated  may  have  been  at  the  time  occu- 
pied by  the  enemy  or  the  theatre  of  war.  XXV,  021.  Held 
further  that  the  fact  that*the  claimant  was  a  foreigner, 
(XXVI,  253,)  or  a  woman  or  non-combatant,  (XXI,  464,) 
or  an  eleemosynary  cori)oration,  (XXX,  475,)  could  not  en. 
title  the  claim  to  be  entertained,  if  it  did  not  arise  in  a  "loyaP' 
State.    But  held  that  claims  of  officers  or  soldiers,  (as  well 

^  United  States  v.  Russell,  13  Wallace,  630. 

^  As  to  the  effect  of  the  amendment  by  the  Act  of  Feb.  18, 
1875,  see  Opinion  of  Attorney  General  of  August  25,  1875, 
(XV  Opins.  — ) 

^See  the  construction  of  the  Act  of  1864  by  Congress  in  the 
subsequent  Act  of  Feb.  21, 1867  ;  also  Circular  Xo.  51,  of  the 
War  Department  of  1865,  and  XII  Opins.  of  Attys.  Gen.  362, 
497. 


170  CLAIMS. 

as  sutlers  employed  with  the  army,)  could  not  be  debarred 
by  the  Act,  since  such  claims  could  not  be  said  to  have  any 
locality  of  origin  other  than  in  the  army  itself.  XXII,  177  5 
XXIli,  485;  XXIY,  495  J  XXVI,  62-,  XXXIII,  523.  So 
Jield  that  the  Act  did  not  preclude  the  entertaining  of  claims 
of  "loyal"  members  of  the  Cherokee  nation,  for  i)roperty 
taken  for  the  use  of  the  army  in  the  territory  occui^ied  by 
such  natiou.  XXX,  20.  And  held  in  a  case  of  a  claim  for 
"  quartermaster's  stores "  arising  in  a  "  State  in  rebellion,'^ 
that  the  fact  that  the  claimant,  a  resident  of  such  State,  had 
since  been  pardoned  by  the  President  did  not  entitle  his 
claim  to  be  entertained  under  the  Act ;  the  pardon  dispens- 
ing indeed  with  the  necessity  of  proving  loyalty,^  but  not 
otherwise  modifying  the  status  of  the  claim  under  the  stat- 
ute.    XXVI,  IGO : 

h.  That  the  term  ^'  quartermaster's  stores"  did  not  include 
rent,  or  the  use  and  occupation  of  land  or  buildings,  by  the 
army .2  XVII,  509;  XVIII,  50G;  XIX,  428;  XXVI,  51; 
XXVIII,  159;  XXX,  433,  473;  XXXIII,  127;  XXXVII,  6. 
And  held  that  a  claim  for  rent,  or  damage  to  real  estate,  could 
not  be  entertained  under  the  Act,  although  the  premises  were 
in  fact  restored  to  the  claimant  as  owner  at  the  close  of  the 
war,  (XXVI,  454;)  or  though  rent  had  in  fact  been  paid  by 
a  military  subordinate,  through  ignorance  or  misconception 
of  tbe  law,  for  a  portion  of  the  period  of  the  occupation, 
(XXVIII,  150;)  or  though  a  contract  for  rent  had  in  fact 
been  entered  into,  if  such  contract  was  not  an  express 
written  contract,  duly  approved  and  legally  valid.^  XXX, 
434.  Held  further  that  claims  for  cotton,  (XXVI,  247,)  and 
for  lumber,  (XXVI,  331,)  seized  fn  the  enemy's  country  and 
used  to  strengthen  fortifications  could  not  be  regarded  as 
"  quartermaster's  stores."  And  so  held  of  liquors  taken  for 
the  use  of  the  medical  department  of  the  arraj^  in  Xorth 
Carolina,  in  1865.     XX,  568 : 

c.  That  the  term  "  proper  officer"  was  not  to  be  construed 
as  intending  necessarily  an  officer  of  the  quartermaster  or 

^United  States  v.  Klein,  13  Wallace,  128;  Armstrong  v. 
United  States,  Id.  154. 

2  See  XII  Opins.  of  Attys.  Gen.  487-8 ;  also  the  proviso, 
derived  from  the  Act  of  Feb.  21,  1867,  added  to  Sees.  300,  A. 
and  300,  B.,  Eev.  Sts. 

2 And  see  Filor  v.  United  States,  9  Wallace,  945. 


CLERK.  171 

subsistence  department,  but  that  it  properly  included  any 
commander  or  other  officer  warranted  under  the  circum- 
stances of  the  case  in  receiving  or  taking  the  stores.  XXI, 
79: 

d.  That  the  proviso — "  if  convinced  *  *  *  of  the  loy- 
alty of  the  claimant,"  in  connection  with  the  rest  of  the  stat- 
ute, made  the  Quartermaster  General  or  Commissary  Gen- 
eral  of  Subsistence,  the  exchisive  judge  on  the  question  of 
loyalty  in  each  case.  XXXI,  352.  And  held^  further,  that 
the  Act  devolved  the  function,  of  examining  and  reporting 
upon  the  claims  specified,  on  the  Quartermaster  General  and 
Commissary  General  as  public  officials  of  the  United  States 
rather  than  in  their  military  capacity  j  and  that  their  action 
under  the  statute  was  therefore  not  subject  to  review  by  a 
military  superior  or  the  Secretary  of  War.     XXX YI I,  551 : 

€.  That,  in  view  of  the  condition — '' and  if  convinced  *  *  * 
that  the  stores  have  actually  been  received,  or  taken,  for  the 
use  of,  and  used  by,  the  army,"  no  claim  could  be  entertained 
for  articles  not  actually  procured  for  a  legitimate  military  use 
and  actually  used  accordingly  :  thus,  that  claims  for  animals 
or  other  proi^erty  taken  for  x^ersonal  use  or  i^rolit  by  soldiers, 
cami^-followers,  &c.,  could  not  be  entertained  under  the  Act. 
XIX,  533 ;  XXI,  79  j  XXIV,  503 ;  XXVII,  lOG ;  XXVIII,  56. 
/  That  the  proviso  at  the  end  of  the  Act,  (Kev.  Sts.  p.  50,) 
authorizing  the  extension  of  its  i)rovisions  to  certain  i^laces 
included  in  the  "  States  in  rebellion,"  could  not  be  extended 
to  any  localities  not  thus  specified,  or  to  parts  of  insurrec- 
tionary States  excepted  by  proclamations  of  the  President 
from  the  operation  of  certain  special  restrictions  but  not  from 
the  status  of  being  in  insurrection- — as  the  parishes  of  Louisi- 
ana referred  to  in  the  proclamation  of  Jany.  1^  18G3,  or  the 
port  of  Xew  Orleans  as  affected  by  the  i)roclamation  of  April 
2, 18G3.  XVII,  007  J  XX,  399  j  558  j  XXI,  213  j  XXII,  293  j 
XXXVII,  5,  71. 

CLERK. 

1.  The  authority  for  the  employment  of  a  civilian  clerk  for 
a  court  martial,  (other  than  the '' reporter "  authorized  by 
Sec.  1203,  Rev.  Sts.,)  is  contained  in  par.  1138,  of  the  Army 
Regulations.  Civilian  clerks  for  military  courts,  (other  than 
stenographic  reporters,)  have  usually  been  allowed  and  paid 


172  CLOTHINa  ALLOWANCE. 

by  the  Pay  Department,  (upon  the  certificate  of  the  judge 
advocate,)  at  the  rate  of  $3  a  day.^  II,  338 ;  YII,  71  j  XIX, 
315.     [See  Eeporter  §  3.] 

2.  A  clerk  to  a  court-martial,  (other  than  the  ^'  reporter," 
authorized,  and  specifically  directed  to  be  sworn,  by  Sec. 
1203,  Rev.  Sts.,)  is  not  required  to  be  sworn :  neither  the 
judge  advocate  nor  president  of  a  court-martial  is  empowered 
to  swear  such  a  clerk.    XXXYII,  591. 

3.  A  court-martial,  member  of  court,  or  judge  advocate, 
cannot  of  course  lawfully  communicate  to  a  clerk,  by  allow- 
ing him  to  record  the  same  or  otherwise,  the  finding  or  sen- 
tence of  the  court.  Before  i>roceeding  to  deliberate  \x\)o\i  its 
finding,  the  court  should  require  the  clerk,  (or  reporter,)  if  it 
has  one,  to  withdraw.  But  the  fact  that  the  finding  or  sen- 
tence, or  both,  may  have  been  made  known  to  the  clerk  of  a 
court  martial,  cannot  affect  the  legal  validity  of  its  proceed- 
ings or  sentence.  Y,  478  j  XI,  318;  XXYIII,  146;  XLII, 
218.    [See  EiaHTY  Fourth  Article  §  5.] 

4.  Held  that  a  claim  by  an  officer  to  be  allowed  extra  com- 
pensation for  services  rendered  by  him  as  clerk  to  a  general 
court  martial  of  which  he  was  the  junior  member,  was  wholly 
without  sanction  in  usage,  and  moreover  could  not  be  allowed 
without  a  violation  of  Sec.  1705,  Eev.  Sts.  XXII,  578.  As  to 
the  authority  for  allowing  enlisted  men  extra  compensation  for 
services  rendered  as  clerks  to  courts-martial,  see  Extra 
Duty  Pay  §  4. 

As  to  the  non-amenability  to  trial  by  court  martial,  in  time 
of  peace,  of  civilian  clerks  emj)loyed  in  connection  with  the 
military  branch  of  the  public  ser\dce,  see  Sixty  Third  Arti- 
cle §  7. 

See  retirement  ^  14. 

CLOTHING  AILOWAHCE. 

1.  By  the  existing  law — Sec.  1302,  Eev.  Sts. — the  pecuniary 
allowance  to  soldiers  for  clothing  not  drawn  is  payable  only 
upon  ^^  final  discharge.'^  A  forfeiture  of  ^' pay  and  allow- 
ances," imposed  by  sentence  of  court-martial,  will  not  there- 

^  The  existing  authority  for  compensating  these  clerks  is 
found  in  the  Act  of  May  4,  1880,  which  includes  among  the 
items  of  appropriation  for  the  Pay  Department  of  the  Army — 
"  compensation  of  citizen  clerics  and  witnesses  attending 
upon  military  courts  and  commissions." 


CLOTHING — LOSS  OF.  173 

fore  affect  tliis  particular  allowance,  except  when  imposed  in 
connection  with  the  punishment  of  dishonorable  discharge. 
XXY,  48G. 

2.  A  sentence  forfeiting  ^^  i^ay  and  allowances  "  for  a  cer- 
tain period  does  not  affect  the  right  of  the  soldier  to  receive 
the  usual  and  necessary  allowance  of  clothing  for  such  i^eriod. 
[See  FoEFEiTURE,  II  §  4.]  A  soldier,  while  he  remains  in 
the  service,  must  he  clothed  as  well  as  fed.  The  exception 
sometimes  made  by  courts-martial  in  such  sentences — "except 
necessary  clothing,"  is  thus  surplusage.    XXIX,  591. 

3.  A  soldier  is  not  entitled  to  be  credited  in  his  clothing 
account  with  the  value  of  clothing  lost  by  lire  or  other  casualty. 
This  can  be  made  good  to  him  only  by  a  gratuitous  issue  under 
the  Army  Eegulation,  (see  Clothtxg — Loss  of  §  2,)  or  by  an 
appropriation  for  the  puri^ose  by  Congress.    XXXI,  261. 

CLOTHING- LOSS  OF. 

1.  The  United  States  is  not  an  insurer  of  the  effects  of 
officers  or  soldiers  of  the  army  against  fire  or  other  casualty. 
Where  an  ofiicer  has  suffered  a  loss  of  clothing,  &c.,  through 
a  fire  in  the  barracks  or  other  public  quarters  occupied  by 
him,  he  can  be  reimbursed  only  by  the  action  of  Congress. 
XXX,  462.  Such  also  is  the  only  means  of  relief  for  a  soldier 
where  his  case  does  not  come  within  the  regulation  referred, 
to  in  the  next  paragraph. 

2.  Held  that  par.  i)5  of  the  Appendix  to  the  Army  Eegula- 
tions  of  1863,  was  properly  construed  as  authorizing  the  Sec- 
retary of  War  to  make  gratuitous  issues  of  clothing  to  soldiers 
to  replace  clothing  lost,  only  where  the  loss  was  the  immediate 
or  direct  result  of  a  due  comi^liance  with  a  comi^etent  military 
order; — as  where,  by  the  express  order  of  an  authorized 
sui>erior,  clothing  was  left  behind  on  going  into  action  or 
abandoned  on  a  retreat,  and  thus  eventually  captured  or 
otherwise  lost.  XXXIX,  181.  But  held  that  the  authority 
to  make  the  issue  under  the  regulation  did  not  exist  where 
the  loss  of  the  clothing  occurred  as  the  immediate  consequence 
of  a  casualty  or  the  violence  of  the  elements  ;  — as  Avhere  it 
was  destroyed  by  a  fire  in  barracks,  (XXXI,  264 ;  XXXVI, 
342,  427 ;)  or  by  the  burning  of  a  transport,  (XXXYIII,  514;) 
or  by  burning  incurred  in  saving  government  property  from  fire, 
(XXXIX,  181 ;)  or  by  neglect  or  theft  on  the  part  of  persons 


174  COLLEGE  OR  UNIVERSITY. 

• 

in  charge,  (XXXVII,  99.)  And  similarly  lield^  where  the 
loss,  though  incurred  in  the  course  of  compliance  with  orders, 
was  the  result  directly  of  the  casualty )  as  where  it  was  burned 
while  the  soldiers  were  extinguishing,  under  orders,  a  prairie 
fire.  XXXVII,  206.  And  advised  that  in  all  such  cases 
where  it  was  not  quite  clear  that  the  Secretary  was  authorized 
by  the  terms  of  the  regulation  to  make  the  issue.  Congress 
would  properly  be  applied  to  for  specific  authority  for  the 
purpose.^    XXXI,  264. 

COLLEGE  OR  UKIVEESITY. 

[Under  Section  1225,  Eevised  Statutes.] 

1.  The  provision  of  this  Section  that  ^Hhe  number  of  offi- 
cers so  detailed  shall  not  exceed  thirty  at  any  time,"  means 
that  only  thirty  officers  in  all — active  and  retired — shall  be 
so  detailed.    XXXVII,  201. 

2.  It  is  only  colleges,  &c.,  for  which  officers  of  the  army 
have  been  detailed  to  act  as  professors,  &c.,  under  this  Sec- 
tion that  the  Secretary  of  War  is  authorized,  by  the  same 
Section,  to  supply  with  arms  for  the  instruction  of  their  stu- 
dents.    XXXVli,  201. 

3.  The  official  of  the  college,  &c.,  to  whom  the  ordnance 
stores  issued  under  this  Section  are  entrusted,  may  properly 
be  required  to  render  the  returns  indicated  in  Sec.  1167,  Eev. 
Sts.,  which  directs  that  all  "officers,  agents  or  persons,"  re- 
ceiving or  entrusted  with  ordnance  stores  or  supplies,  shall 
make  certain  regular  returns  of  the  same  according  to  forms 
and  rules  prescribed  by  the  Chief  of  Ordnance  with  the  appro- 
val of  the  Secretary  of  War.  XLII,  282.  [See  Ordnance 
Department.] 

4.  Heldj  that  the  term  "established  college  or  uniA^ersity 
within  the  United  States,"  could  i)roperly  and  safely  be  con- 
strued as  including  only  State  universities  or  incorporated 
public  institutions ;  that,  in  view  especially  of  the  fact  that 
only  thirty  colleges,  &c.,  could  be  provided  with  arms,  mili- 

'  See  acts  of  July  24,  1861 ;  Joint  Eesolution  of  July  20, 
1868 ;  Acts  of  March  11  and  May  15,  1872 ;  and  Joint  Eeso- 
lutions  of  June  19,  1874,  and  March  3,  1877 — where  such 
authority  was  expressly  given  by  Congress,  in  cases  mostly 
of  loss  by  fire.  In  this  connection,  note  G.  0. 13,  War  Dept., 
1875,  in  part  issued  in  view  of  the  above  opinions. 


COLORED  TROOPS.  175 

tary  x^rofessors,  &c.,  at  one  time,  it  could  not  be  supposed 
that  it  was  contemplated  by  Congress  that  the  provisions  of 
the  statute  should  extend  to  private  or  unincori)orated  schools 
or  academies.  XLI,  406 ;  XLII,  173.  [See  next  paragraph.] 
5.  A  provision  of  the  recent  Army  Appropriation  Act  of 
May  4,  1880,  requires  that,  to  authorize  the  detail  of  a  retired 
officer  as  a  professor,  «&c.,  the  college,  &c.,  shall  have  been 
incor])orated  under  the  laws  of  the  State.  From  this  provision 
it  may  be  inferred  that  it  is  contemplated  by  Congress  that 
the  details  for  such  positions  will  mostly  be  made  from  the 
class  of  retired  officers.  The  authority  however,  given  by  the 
original  statute,  (Sec.  1225,  Eev.  Sts.,)  to  so  detail  officers  on 
the  active  list,  is  not  itgarded  as  divested  or  impaired  by  the 
later  Act.    XLIY,  52. 

See  bond  ^  6-10. 

COLORED  TROOPS. 

Upon  a  proposition,  made  in  January,  1866,  by  the  Mem- 
phis and  Little  Eock  Kailroad  Company,  in  Arkansas,  to  em- 
ploy, in  comiileting  the  construction  of  their  road,  the  colored 
United  States  troops  stationed  in  its  neighborhood,  with  the 
understanding  that  they  should  be  compensated  for  their  labor 
in  grants  of  land  belonging  to  the  company  adjoining  the  line 
of  its  road,  advised,  that  such  i)roposition  be  not  acceded  to  by 
the  government,  and  for  the  following  reasons :  1st.  The  acts 
of  17th  July,  1862,  c.  105,  s.  11,  and  c.  201,  s.  12,  which  con- 
vey the  original  authority  for  the  enlistment  and  employment 
in  the  United  States  service  of  colored  troops  or  i)ersons,  jus- 
tify their  being  employed  in  no  work  other  than  that  properly 
pertaining  or  incidental  to  military  service ;  2d.  All  the  legis- 
lation since  the  date  of  these  acts,  in  regard  to  the  enlistment^ 
pay,  bounties,  &c.,  of  colored  troops,  aims  at  placing  them 
upon  the  same  footing,  as  to  their  service,  duties  and  privil- 
eges, as  white  soldiers;  3d.  The  employment  of  colored  troops 
as  the  hirelings  of  private  individuals  or  corporations,  and 
in  a  lower  and  more  servile  class  of  labor  than  that  which 
white  trooi)s  are  called  upon  to  perform,  would  be  injurious 
to  their  discipline  and  degrading  to  their  morale,  and  is  there- 
fore incompatible  with  their  status  as  United  States  soldiers; 
4th.  The  sentiment  of  all  good  citizens  is  in  favor  of  the  ele- 


176     CO^OIISSARY   SERGEANT — COMPANY   COMMANDER. 

vation  of  the  colored  race,  and  their  reception  into  the  military 
service  is  one  of  the  very  measures  which,  in  the  i)ublic  ex- 
pression of  this  sentiment,  have  been  resorted  to  as  a  means 
of  promoting  the  desired  end ;  and  any  measure  which  tends 
to  degrade  the  colored  soldier,  or  to  distinguish  him  disparag- 
ingly from  his  white  comrade  in  arms,  does  violence  to  this 
sentiment,  as  well  as  to  the  intent  of  Congress  as  manifested 
in  its  legislation. '    XX,  349. 

COMMISSAEY  SERGEANT. 

Sec.  1142,  Eev.  Sts.,  makes  it  the  duty  of  commissary  ser- 
geants '^to  receive  and  preserve  the  commissary  supj^lies"  at 
their  posts,  that  is  to  say,  commissary  stores  belonging  to  the 
United  States.  So  held,,  under  this  Section,  that  the  Secretary 
of  War  would  not  be  authorized  to  appoint  or  detail  a  com- 
missarj^  sergeant  to  receive  and  take  charge  of  the  subsistence 
stores  purchased  from  the  United  States  by  the  '  Commissary 
of  Cadets'  at  the  Military  Academy  for  the  use  of  the  cadets  j 
such  stores  not  being  property  of  the  United  States.  XLI, 
261. 

COMMISSION. 
See  APPOINTMENT. 

COMMUTATION. 

See  one  HUNDRED  AND  TWELFTH  ARTICLE  $  5. 

COMPANY  COMMANDER. 

Extract  from  an  endorsement  of  the  Judge  Advocate  Gen- 
eral, in  submitting  to  the  Secretary  of  War  a  communication, 
(concurred  in  by  the  Judge  Advocate  General,)  from  Brig. 
Gen.  E.  O.  C.  Ord,  commanding  Dept.  of  Texas,  in  regard  to 
tJie  relations  between  the  coynmissioned  and  non-eommissioned 
officers  of  cojupanies. 

"Though  I  am  aware  of  no  law  m  terms  prohibiting  a  com- 
pany commander  from  delegating  to  a  non-commissioned  offi- 

^  For  an  extended  account  of  the  emi)loyment  of  colored  sol- 
diers in  our  wars,  see  Corbin  v.  Marsh,  2  Duvall,  209  et  seq. 
(Opinion  of  Williams,  J.) 


COMPANY  FUND.  1<7 

cer  so  important  a  part  of  bis  authority  and  duty  as  the 
entertaining  in  the  first  instance  of  the  complaints  and  re- 
quests of  the  men  of  the  comi)any,  I  can  but  consider  such  a 
delegation  to  be  at  variance  with  the  principle  and  system  of 
our  military  organization.  Further,  such  a  i)ractice,  as  it 
appears  to  me,  must  tend  to  render  commissioned  officers 
negligent  and  irresponsible,  and  non-commissioned  officers 
arbitrary  and  overbearing.  Indeed  I  can  conceive  of  nothing 
that  would  sooner  spoil  a  good  sergeant  than  to  place  him  in 
a  position  to  determine  at  his  discretion  whether  the  com- 
plaints of  his  inferiors  should  be  entertained  by  his  sui)erior, 
and  to  color  them  at  will  when  transmitted.  Thus,  though 
the  practice  may,  in  some  instances,  have  been  found  conven- 
ient and  innocuous,  its  effect  in  general  must,  I  think,  be 
prejudicial  to  the  best  interests  of  the  service."^    XLII,  273. 

COMPANY  FUND. 

This  fund  is  money  of  the  United  States,  being  the  product 
of  ijroperty  of  the  United  States,  viz.,  rations  bought  with  the 
public  funds  originally  api)ropriated  by  Congress  for  the  sub- 
sistence of  the  arm}'.  Once  in  fact  appropriated  in  another 
form  for  the  use  of  trooi^s,  the  money  is  properly  and  custom- 
arily employed  for  their  use  when  it  reappears  as  comx)any 
fund.  The  Army  Eegulations  make  the  company  commander 
the  trustee  of  the  fund,  and  he  is  required  to  disburse  the 
same  for  the  benefit  exclusively  of  the  men  of  the  company 
and  duly  to  account  for  it  to  the  regimental  or  post  com- 
mander.^ Where  a  company  goes  out  of  service,  leaving 
any  company  fund  unexpended,  the  amount  reverts  to  the 
United  States  treasury.  XXII,  50  j  XXVIII,  080.  A  com- 
pany commander  who  ai)propriates  to  his  own  use,  or  neglects 
duly  to  account  for,  a  company  fund,  is  liable  to  a  suit  by 
the  United  States  to  recover  the  same  5  and  where,  on  ceasing 
to  command  the  company,  he  neglects  to  turn  over  the 
fund  in  his  hands  to  his  successor  in  command,  the  latter 
has  such  an  interest  in  the  same  as  to  qualify  him  to  sue 

*  Compare  remarks  of  reviewing  officer  in  G.  C.  M.  O.  20, 
Dept.  of  the  Columbia,  1879;  do.  2,  Id.  1880. 

2  See  xVrmy  Eegulations,  §  205-207  j  G.  O.  22,  War  Dept, 
1800;  G.  O.  91,  Id.,  1873. 
12  D 


178  COMPENSATION— FOR    KXTEA   SERVICES. 

therefor.  A  commander  thus  failing  or  neglecting  is  also 
liable  to  have  his  pay  stox)i)ed  for  the  amount  of  the  deficit, 
and  to  be  i^roceeded  against  for  embezzlement  or  misappro- 
priation under  Art.  60.  Y,  588  j  YIII,  148;  XXIII,  13  j 
XXYIII,  680. 

COMPENSATION— FOR  EXTRA  SERVICES. 

1.  Upon  an  application  by  a  clerk  of  a  bureau  of  the  War 
Department  to  be  paid  an  amount  in  addition  to  his  regular 
salary,  as  a  compensation  for  services  performed  by  him  for 
a  certain  period  as  acting  chief  clerk,  heldj  in  view  of  the 
provisions  of  Sees.  1764  and  1765,  Rev.  Sts.,  that  such  addi- 
tional comi^ensation  could  ndt  be  allowed  except  by  the  au- 
thority of  Congress.^     XXXIX,  643. 

2.  Held  that  a  soldier,  who  was  employed  in  the  capacity 
of  an  acting  assistant  surgeon  for  a  certain  period  in  time  of 
war,  could  not  legally  be  allowed,  by  the  Secretary  of  War, 
for  such  service,  any  extra  comx^ensatiou,  (other  than  the 
extra  pay  provided  for  '^constant  labor"  by  Sec.  1287,  Eev. 
Sts.,)  without  a  violation  of  Sec.  1765,  Eev.  Sts.,  but  that  Con- 
gress alone  could  authorize  the  same.  XXX,  456.  Similarly 
Jield  that  a  soldier  could  not  be  allowed  a  comi)ensation,  addi- 
tional to  his  regular  pay,  for  si>ecial  services  claimed  to  have 
been  rendered  as  a  spy  or  scout  during  the  war.     XLII,  5GQ. 

3.  A  person  while  holding  the  office  of  U.  S.  postmaster — 
an  office  of  which  the  emoluments  are  ''  fixed  by  law,"  was 
emx^loyed,  (without  being  appointed  to  office  as  clerk,)  to 
render  clei  ical  services  to  an  ordnance  officer.  Held  that  he 
could  not  legally  be  paid,  out  of  the  ai)propriation  for  the  ord- 
nance department  or  otherwise,  (in  the  absence  of  authority 
of  Congress,)  any  extra  comi^ensation  for  such  services,  since 
such  compensation  would  be  within  the  prohibition  of  Sec. 
1765,  Rev.  Sts.  And  reinarJced  that  it  did  not  except  the  case 
from  the  statute  that  the  postmaster  had  an  assistant  who 
performed  the  work  and  received  the  emoluments  of  the  post 
office  Avhile  he  (the  postmaster)  was  acting  as  clerk  in  the  ord- 
nance office;  postmasters'  assistants  not  being  recoguized  b^^ 

^  Comi^are  Hoyt  v.  United  States,  10  Howard,  141 ;  United 
States  V.  Shoemaker,  7  Wallace,  342;  Stausbury  v.  United 
States,  8  Wallace,  34. 


CO^IPENSATION— PROPERTY  TAKEN  FOR  PUBLIC  USE.     179 

law  as  public  officers,  but  bein.c:  merely  emi)loyees  of  the  post- 
master, who  alone  is  responsible  to  the  United  States  for  the 
performance  of  the  duty  and  legally  entitled  to  the  salary  of 
the  oftice.     XXXIX,  553 ;  XLI,  300. 

4.  Held  that  the  existinoj  law  prohibiting  the  payment  of 
extra  compensation  to  salaried  officers  of  the  United  States 
did  not  affect  the  right  of  an  officer  of  the  army  to  receive 
from  a  State  the  salary  of  a  State  office  exercised  by  him 
during  the  operation  of  the  Iieconstrnction  Laws,  (XXX, 
159 ;)  or  to  receive  the  amount  of  a  reward  offered  by  the  Gov- 
ernor of  a  State  for  the  performance  of  certain  i)ublic  service. 
XXXIY,  388. 

That  neither  an  officer,  nor  an  enlisted  man,  (except  under 
Sec.  1287,  Rev.  Sts.,)  can  receive  compensation  for  services 
performed  as  a  clerk  of  a  court  martial,  without  a  violation  of 
Sec.  1765,  Eev.  Sts., — see  Clerk  §  4  j  Extra  Duty  Pay  §  4. 

As  to  the  distinction  between  receiving  compensation  for 
extra  service  and  receiving  double  compensation  for  two  dis- 
tinct offices,  see  Retire3ient  §  14. 


COMPENSATION— FOR  PROPERTY  TAKEN  FOR  PUBLIC 

USE. 

The  fact  that  a  person  who  has  perfected  an  invention  is 
an  officer  or  employee  of  the  United  States  can  affect  in  no 
manner  either  his  right  to  i)rocure  a  i)atent  for  said  invention 
or  to  dispose  of  the  same  or  of  its  use  to  the  United  States,  or 
the  authority  of  the  proper  department  of  the  government,  (if 
furnished  with  funds  ai)])licable  to  the  purpose,)  to  purchase 
such  inv^ention  or  its  use,  and  pay  a  reasonable  compensa- 
tion or  royalty  for  the  same.^  So,  if  the  government,  in  the 
absence  of  any  contract,  takes  and  uses  in  the  military  or 
public  service  an  invention  which  has  been  patented  by  an 
officer,  soldier,  or  emi^loyee  connected  with  the  army,  such 
officer,  &c.,  has,  under  the  i>rovision  of  the  Vth  Amendment 
of  the  Constitution,  the  same  right  to  a  "just  compensation'' 
for  such  use  that  any  civilian  would  have  under  the  like  cir- 
cumstances.^   If  indeed,  while  performing  his  own  proper 

^  See  case  of  Burns  i\  United  States,  reported  in  4  Ct.  CI. 
113,  and  12  Wallace,  246. 

2 See  lieport  of  Commission  on  Ordnance;  Ex.  Doc.  72, 
Senate,  37th  Cong.  2d  Ses.,  pp.  509-571,  (case  of  Eodman 
cannon.) 


180   CONDUCT  TO  THE  PREJUDICE,  &C. — CONTRACT. 

duties,  the  officer,  »&c.,  in  experimenting,  framing  models,  &c., 
for  his  invention,  lias  availed  himself  of  the  tools  or  materials 
of  the  government  or  other  facilities  afforded  by  a  govern- 
ment workshoi),  &c.,  this  fact  is  to  be  considered  in  connec- 
tion with  the  question  of  the  quantum  of  the  compensation  to 
be  awarded  him.    XXI,  413. 

See  claims  §  7,  9. 

CONBUCT    TO    THE    PREJUDICE    OF    GOOD    OJIDER   AND 

MILITARY  DISCIPLINE. 

See  sixty  SECOND  ARTICLE. 

CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN. 

See  SIXTY  FIRST  ARTICLE 

CONFESSION. 

See  evidence  $  13. 

CONFINEMENT. 

See  imprisonment. 

CONTEMPT  OF  COURT 

See  eighty  SIXTH  ARTICLE. 

ONE  HUNDRED  AND  FIFTEENTH  ARTICLE  §  5. 
WITNESS  §  16,23,31,34. 

CONTINUANCE. 

See  NINETY  THIRD  ARTICLE. 

CONTRACT. 

1.  It  is  only  an  express  contract  which,  (in  the  absence  of 
special  authority  from  Congress,)  can  legally  be  entered  into 
by  the  Secretary  of  War,  or  a  military  officer,  or  can  be  recog- 
nized and  acted  upon  as  binding  upon  the  United  States. 
Claims  against  the  United  States  arising  upon  alleged  implied 
contract  cannot  be  entertained,  but  the  claimants  must  be 
referred  to  the  Court  of  Claims  or  Congress.  [See  Claims 
§  6.]    Further,  the  contract,  to  be  legally  made  or  recognized 


CONTRACT.  181 

as  legal,  iniist  be  in  writing;  ^  (except  only — according  to  the 
ruling  in  Cobb's  case  '^ — when  entered  into  without  previous 
advertisement  by  reason  of  the  existence  of  a  "  public  exi- 
gency " :  see  §  9,  infra.)  So,  in  a  case  where  the  only  evidence 
of  an  alleged  contract  of  lease  consisted  of  vouchers,  setting 
forth  accounts  for  rent  claimed,  approved  by  an  assistant 
quartermaster,  held  that  there  was  no  sufficient  evidence  of 
an  express  or  written  contract  upon  which  payment  could  be 
authorized  by  the  Secretary  of  War.  ^    XXX,  434. 

2.  Except  in  the  rare  case  of  an  existing  public  exigency, 
(see  §  0,)  a  contract  for  supi)lies  in  the  War  Department  or 
military  branch  of  the  service  is  to  be  i:)receded  by  an  adver- 
tisement for  proposals  as  directed  in  Sec.  3709,  Rev.  Sts. 
This  advertisement  is  not  a  mere  facility  for  the  convenience 
of  an  executive  department,  which  may  be  waived  at  discre- 
tion, but  an  essential  proceeding  prescribed  by  the  statute  as 
a  condition  to  the  exercise  of  the  authority  to  enter  into  a 
contract  for  the  United  States.  Thus  enjoined,  no  omission 
or  evasion  of  this  pre-requisite,  however  convenient  such  an 
omission  or  evasion  may  be,  can  legally  be  allowed.  ^    So,  held 

^  See  Henderson  v.  United  States,  4  Ct.  CI.  75;  XIY  Opins. 
of  Attys.  Gen.  229 ;  Clark  v.  United  States,  5  Otto,  539. 

2  Cobb  V.  United  States,  7  Ct.  CI.  470,  and  9  Id.  291.  And 
see  Thompson  v.  United  States,  Id.  198. 

3  See  XLV  Opins.  of  Attys.  Gen.  230. 

^  See  VI  Opins.  of  Attj  s.  Gen.  40G ;  X  Id.  28  ;  also  opinion 
of  the  Solicitor  General  of  March  20,  1870,  (XY  Opins.  — ,) 
wherein,  in  holding  contracts  made  without  advertising  to  be 
not  binding  on  the  United  States,  he  dissents  from  the  opin- 
ion of  Atty.  Gen.  Bates,  in  X  Oi)ins.  410,  to  the  effect  that 
while  an  absence  of  the  prescribed  advertisement  will  render 
illegal  and  inoperative  an  unexecuted  contract,  the  Govern- 
ment cannot,  on  account  of  such  omission,  rescind,  to  the  dam- 
age of  a  contractor,  a  contract  entered  into  by  him  in  gootl 
faith  and  partly  performed.  In  a  later  opinion  of  April  27, 
1877,  (XY  Opins.  — ,)  the  Attorney  General  refers  to  the  ques- 
tion, whether  the  provision  of  Sec.  3709,  Kev.  Sts.,  retpiiring 
that  contracts  in  general  shall  be  preceded  by  advertisement, 
is  mandatory  or  only  directory,  as  one  which  has  been  much 
discussed,  (see,  for  example,  the  reference  to  this  question  in 
Fowler  v.  United  States,  3  Ct.  01.  47,)  but  is  not  required  to 
be  decided  in  that  opinion.  But  whatever  may  be  the  true 
construction  of  this  Section,  it  is  clear  that  no  ofdcer  of  the 
army,  in  the  absence  of  express  authority  to  do  so  from  the 
Secretary  of  War,  can  be  justitied  in  omitting  to  comj^ly  with 
the  provision  in  regard  to  advertising. 


182  CONTRACT. 

tliat  it  Tvas  no  excuse  for  a  iion-comi)liance  with  the  statute, 
"by  a  quartermaster,  that  his  contracts  (made  without  adver- 
tisement) had  been  made  with  the  most  reliable  parties  and 
to  the  advantage  of  the  United  States..  XXXIX,  84.  And 
heldthat  the  requirement  as  to  advertising  for  proposals  must 
be  coraphed  with  in  contracting  for  a  supply  of  articles  pur- 
chased ior  trialy  equally  as  if  the  contract  were  for  the  regu- 
lar yearly  supplies.     XXXYIE,  464 

3.  The  main  object  of  the  advertisement  is  to  induce  a  free 
and  open  competition  for  the  contracts  of  the  government 
and  thus  to  protect  the  United  States  from  fraudulent  com- 
binations and  collusive  preferences  in  its  business  transac- 
tions. ^  At  the  same  time  the  advertisement,  in  inviting  i)ro- 
posals  from  the  public,  is  properly  to  be  viewed  as  a  pledge  on 
the  part  of  the  United  States  that  the  contract  will,  as  a  gen- 
eral rule,  be  awarded  to  the  lowest  bidder,  provided  he  is  a 
resi)onsible  person  and  his  bid  is  a  reasonable  one,  (see  pars. 
1046,  1179,  Army  Eegs.,)  and  i)rovided,  of  course,  he  complies 
with  the  existing  regulations — as  to  bond,  &c.  [See  Regula- 
tions in  regard  to  contracts,  (prepared  by  a  Board  of  which 
the  writer  was  a  member,)  published  in  G.  O.  10,  Hdqrs. 
ot  Army,  of  1879,  repeated  and  amended  in  G.  O.  72  of  same 
year  and  G.  O.  40  of  1880.]  XXXIX,  426;  XLT,  115.  The 
reservation  not  unfrequently  added  in  the  advertisement,  that 
"  the  United  States  reserves  the  right  to  reject  any  or  all  pro- 
I)osals,''  is  simply  i^recautionary,  and  should  not  be,  and  is 
not,  in  general  taken  advantage  of  except  where  the  lowest 
bidder  fails  to  meet  the  legal  and  proper  conditions.  [See  the 
Eegulations  above  indicated,  of  1879  and  1880,  where  while  the 
form  ijrescribed  for  the  advertisement — on  page  3  of  G.  0. 10, 
and  page  6  of  G .  O.  72,  of  1879,  and  page  6  of  G.  O.  40  of  1880,— 
contains  this  reservation,  the  general  rule  on  the  subject  is 
indicated  in  a  further  paragraph — on  i:)age  13  of  G.  0. 10,  and 
page  14  of  G.  O.  72,  of  1879,  and  page  18  of  G.  0. 40  of  1880.^] 

^  See  Harvey  v.  United  States,  8  Ot.  CI.  506.  In  regard  to 
a  statute,  (similar  to  Sec.  3709,)  governing  the  Post  Office  De- 
partment, the  Supreme  Cotirt,  in  Gartielde  v.  United  States 
3  Otto,  246,  say :  ^'  The  olvject  of  the  statute  w^as  to  secure 
notice,  *  *  *  that  bidders  might  compete,  that  favoritism 
should  be  prevented,  that  efficiency  and  economy  in  the  serv- 
ice should  be  obtained." 

^*  As  follows :  ^'  Except  in  the  rare  cases  where  the  United 


CONTRACT.  183 

A  further  instance  iu  wliicli  the  Uuited  States  may  i)roi)erly 
reject  a  bid  or  bids  is  in  a  case  of  frmul — as  where  the  lowest 
bidder  has  colluded  with  other  bidders  or  with  the  represent- 
ative of  the  United  States,  to  impose  a  high  price  ui)on  the 
gov^ernment.  In  such  a  case  the  bids  of  all  bidders  concerned 
in  the  fraud  may  i)roperly  be  rejected.    XXXYII,  5C4. 

4.  Where  the  lowest  bid  is  rejected  as  being  unreasonably 
high,  a  new  adveitisement  must,  (in  the  absence  of  an  ''  exi- 
gency " — see  §  9  in/ray)  be  resorted  to.  XXXYII,  5G5.  So 
where, — the  lowest  bid  being  rejected  for  a  cause  independ- 
ent of  the  amount  bid, — the  next  lowest  bid  is  an  unreason- 
able one.     XXXVI,  598. 

5.  A  bidder,  (unless  otherwise  bound  in  a  formal  bond  or 
other  express  undertaking,)  may  of  course  withdraw  his  bid, 
which  is  simply  an  inchoate  i)roi)osition  and  not  in  the  nature 
of  a  contract,  at  any  time  before  it  is  accepted.^  The  accept- 
ance of  a  bid,  however,  i)roperly  concludes  both  parties.^  So, 
where  the  lowest  bid  was  a  joint  one,  ^.  e.  one  made  by  two 
or  more  persons  jointly  associated, — held  that  for  the  officer 
representing  the  United  States,  on  accepting  such  bid,  to 
allow  one  of  the  joint  bidders  to  withdraw  from  the  obliga- 
tion to  enter  into  the  contract,  would  be  wholly  unauthorized. 
XXXVI,  598. 

6.  An  executive  officer,  in  awarding  and  enteriug  into  a 
contract  after  advertisement,  is  not  authorizetl  to  require 
from  the  contractor  a  stipulation  at  variance  with  the  condi- 
tions stated  in  the  advertisement,  or  to  assent  to  such  a  stip- 
ulation it"  proposed  by  him ; — for  example  a^  stipulation  for 

States  may  elect  to  exercise  its  reserved  right  to  reject  pro- 
posals, contracts  will  be  awarded  to  the  lowest  respousible 
bona  fide  bidder,  who,  when  required,  produces  a  proper  article, 
and  whose  proposal  thereior  is  not  unreasonable  in  amount." 

*  Such  a  withdrawal,  however,  does  not  release  the  other 
bidders,  and  the  contract  may  be  awarded  to  the  lowest  of 
the  bidders  remaining,  if  his  bid  be  reasonable.  Opinion  of 
the  Solicitor  General  of  August  1^8,  1877,  (XV  Opins. — .) 

'A  formal  notice  to  a  bidder  of  the  acceptance  of  his  bid, 
and  of  the  award  to  him  of  the  contract,  is  beyond  recall,  and 
binding  upon  the  United  States  as  a  comi)ieted  obligation. 
An  award  thus  made  is  in  the  nature  of  a  pieliminary  con- 
tract. Opinion  of  the  Attorney  General  of  April  17,  1877, 
(XV  Opins.—.) 


184  CONTRACT. 

tlie  fiirnisliing  of  a  quantity  of  supplies  greater  than  that 
called  for  in  the  advertisement.^     XXXIX,  425. 

7.  Where  the  advertisement  calls  for  proi)osals  for  supplies 
to  be  delivered  at  a  particular  ijlace  si}ecified,  the  place  of 
delivery  is  a  material  condition  of  the  contract  invited  to  be 
bid  for^  and  the  same  should  therefore  be  awarded  to  the 
lowest  bidder  engaging  to  make  delivery  pt  the  place  desig- 
nated. To  prefer  to  such  bidder  another  whose  bid  is  lower, 
but  whose  offer  is  to  make  delivery  at  a  different  place,  would 
be  unauthorized  and  illegal,  however  convenient  the  place 
named  by  him  might  in  fact  be  to  the  military  authorities. 
XXXIX,  425  5  XLI,  115.     [See  note  to  §  G,  su])ra.\ 

8.  Where  a  bidder  for  a  contract  for  army  supi^lies,  after 
the  acceptance  of  his  bid  as  being  the  lowest  made,  withdrew 
the  same  in  Avriting  and  refused  to  enter  into  the  contract, 
held  that  while  he  would  be  liable  to  a  suit  for  damages  if  the 
United  States  suffered  any  loss  on  account  of  his  defection, 
the  military  authorities  would  not  be  empowered  absolutely 
to  debar  him  from  competing  for  or  entering  into  future  con- 
tracts with  the  United  States.  His  action  in  this  instance 
might  indeed  properly  be  considered  in  connection  with  the 
question  of  his  responsibility  as  a  bidder  on  a  future  occa- 

^In  an  opinion  under  an  Act  of  1843,  (similar  to  the  exist- 
ing law,)  requiring  the  letting  of  contracts  in  the  navy  upon 
advertisements  for  i:)roposals,  it  was  held  by  Atty.  Gen.  Nel- 
son, (lY  Opinions,  334,)  that  the  Xavy  Department  was  not 
authorized,  "  in  awarding  the  contract  to  the  lowest  bidder, 
to  modify  its  terms,  as  proposed  for,  in  regard  to  the  time  of 
delivery^  or  any  other  of  its  material  elements.  The  obvious 
puri^ose,"  he  adds,  ^^  of  the  Act  in  question  was  to  invite 
competition  in  the  proposals ;  and  it  therefore  requires  that 
the  advertisement  emanating  frooa  the  department  shall  par- 
ticularize every  thing  that  may  essentially  affect  the  contract. 
That  the  time  of  delivery  may  be,  in  a  contract  of  this  de- 
scription, a  material  element,  the  circumstances  connected 
with  this  case  clearly  evince.  JSfon  constat,  if  the  time  had 
been  extended,  as  now  i^roposed,  on  the  face  of  the  adver- 
tisement, tliat  other  and  lower  offers  than  were  received  might 
not  have  been  made.  It  may  well  be  that  a  manutacturer 
may  not  be  in  a  condition  to  deliver  at  one  time,  and  yet  be 
full}'  capable  of  doiug  so  at  another  j  and  that,  whilst  he 
would  be  restrained  bj^  this  inability  from  comi)eting  for  a 
contract  within  the  time  limited  by  the  proi)osals,  he  might 
have  successfully  done  so  had  the  extended  time  been  adver 
tised.^' 


CONTRACT.  185 

sioii,  but  as  all  bidding  is  intended  to  be  free  and  open,  it 
could  not  operate  to  exclude  liim  altogether  from  the  priv- 
ilege of  bidding.^  And  aclded  that  it  was  to  be  regretted,  in 
such  a  case,  that  the  party  had  not  been  required  to  furnish 
a  hidder^s  bond  according  to  the  provisions  of  the  Act  of  April 
10,  1878.     XLII,  504. 

9.  Sec.  3700,  Eev.  Sts.,  provides,  generally,  that  the  mak- 
ing of  public  contracts  for  supplies,  &c.,  shall  be  preceded  by 
an  advertising  for  proposals  "  when  the  public  exifjencies  do 
not  require  the  immediate  delivery  of  the  articles  or  perform- 
ance of  the  service."  Exigencies  growing  out  of  a  state  of 
war,  or  hostilities  with  Indians,  were  probably  mainly  had  in 
view,  and  it  is  exigencies  of  this  class  which  have  been  con- 
sidered in  the  adjudged  cases  in  the  Supreme  Court  and 
Court  of  Claims.^  It  is  clear  however  that  other  exigencies 
may  exist  requiring  that  contracts  or  purchases  be  made  at 
once  or  without  the  delay  incident  to  advertising  for  proposals. 
Thus  a  loss  of  stores,  structures,  t&c,  on  hand,  caused  by  an 
actus  Dei  or  vis  major^  as  fire,  storm,  freshet,  or  a  sudden  riot 
or  violent  disorder  5  or  a  loss  of  supplies  occasioned  by  the 
neglect  of  military  subordinates  in  charge  ,•  or  a  failure  of  a 
contractor  to  fulfill  a  contract  for  supplies,  transportation,  or 
other  service — might  properly  be  regarded  as  constituting 
an  "exigency"  under  the  statute,  if  of  such  magnitude  or  in- 
jurious consequence  to  the  army  as  to  necessitate  an  immediate 
malcing  good  of  the  deficiency.^  The  general  rule,  however,  of 
the  statute  in  requiring  a  notice  and  invitation  to  the  public 
as  a  preliminary  to  the  awarding  of  a  contract,  is  founded 
upon  a  sound  and  well-considered  public  policy,  and  exceptions 

^  See  this  opinion  published,  as  concurred  in  by  the  Secre- 
tary of  War,  in  Circular  1,  Office  of  Commissary  General  of 
Subsistence,  March  13,  1880. 

-  See  United  States  r.  Speed,  8  Wallace,  83 ;  Eeeside  v. 
United  States,  2  Ct.  CI.  1;  Mowry  v.  United  States,  Id.  08; 
Stevens  r.  United  States,  Id.  95;  Flovd  r.  United  States,  Id. 
429;  Crowell  v.  United  States,  Id. '  501;  Baker  r.  United 
States,  3  Id.  343;  Henderson  i\  United  States,  4  Id.  75; 
CLiilds  i\  United  States,  Id.  170  ;  Wentworth  v.  United  States, 
5  Id.  302 ;  Wilcox  v.  United  States,  Id.  380 ;  Cobb  i\  United 
States,  7  Id.  471,  and  9  Id.  291 ;  Thompson  v.  United  States, 
Id.  187  ;  McKee  v.  United  States,  12  Id.  505. 

^  See  G.  0. 1 0  of  1879,  s^^  22-25,  pp.  14-15 ;  do.  72,  Id.  p.  52 ;  do. 
40  of  1880,  p.  oS ;  also  McKee  v.  United  States,  12  Ct.  CI.  529-30. 


186  CONTRACT. 

thereto,  especially  in  time  of  peace,  should  be  recognized  as 
admissible  only  where,  if  the  rule  were  strictly  complied 
with,  the  public  interests  would  manifestly  be  most  seriously 
prejudiced.!     XXXVII,  404  -,  XXXIX,  527. 

10.  Thus,  where  a  contractor  failed  in  the  performance  of 
his  contract,  at  a  critical  stage  of  an  imi^ortant  and  much- 
needed  public  work,  and  at  a  time  of  the  year  when,  if  the 
delay  were  incurred  of  advertising  anew,  there  would  be 
risked  a  loss  of  the  api^ropriation  j  and  a  greatly  increased 
charge  to  the  United  States,  as  well  as  serious  embarrassment 
to  the  military  service,  would  be  involved — held  that  the  sit- 
uation might  properly  be  viewed  as  an  '^  exigency  "justifying 
an  immediate  contract  for  the  continuance  of  the  work. 
XLir,  339. 

But  where,  notwithstanding  that  Congress  had  failed  to 
make  appropriations  for  the  fiscal  year  and  no  extra  session 
had  been  convened  for  the  i)urpose  of  having  the  omission 
supplied,  there  remained  ample  time  for  advertising  for  pro- 

!  As  to  the  authority  who  is  to  decide  whether  there  exists 
such  an  exigency  as  is  contemplated  by  the  statute,  the  Su- 
preme Court,  in  United  States  v.  Speed,  8  Wallace,  S3,  has 
held  that  it  is  ''the  ofiicer  charged  with  the  duty  of  procuring 
supplies  or  services  who  is  invested  with  this  discretion." 
This  description  is  rather  general,  nor  is  the  term  "the  x)ur- 
chasiug  ofiicer,"  by  which  the  Court  of  Claims  explains  it,  in 
Thompson  v.  United  States,  9  Ct.  CI.  19G,  a  much  more  pre- 
cise definition.  It  is  clear,  however,  that  a  subordinate  offi- 
cer chari^ed  with  the  duty  of  being  the  immediate  represent- 
ative of  the  United  States  in  a  contract  or  purchase  should  not, 
in  general,  venture  to  dispense  with  advertising,  on  the  theorj^ 
of  the  existence  of  a  public  exigency,  in  the  absence  of  in- 
structions or  orders  from  a  proper  superior.  Xor,  on  the 
other  liand,  will  a  superior  officer,  in  entering  into  a  contract 
for  his  command  or  brancli  of  the  service,  properly  assume 
that  an  "exigency"  exists  authorizing  him  to  dispense  with 
the  statutory  forms,  when  the  period  is  time  of  peace  and 
no  imperative  necessity  exists  for  the  immediate  delivery  of 
the  supplies  or  performance  of  the  service  proposed  to  be 
contracted  for.  It  is  to  be  noted  that  the  cases  both  of  Speed 
and  Thompson  related  to  contracts  entered  into  during  the 
late  war.  In  the  instructive  opinions  of  the  Attorney  General 
on  the  "Fifteen  i)er  cent.  Contracts"  of  Ax^ril  27  and  IMay  3, 
1877,  (XV  Opins.  — ,)  it  is  held  that  the  "exigency"  contem- 
l)lated  by  the  statute  can  be  one  of  time  only,  and  that  it  can 
be  regarded  as  existing  oidy  where  an  immediate  delivery  or 
performance  is  required  by  a  public  necessity. 


CONTRACT.  187 

posals  for  certain  contracts  for  supx)lies  before  the  supi^lies 
tliemselves  would  be  needed,  Jield  that  the  circumstauces  did 
not  justify  a  dispensing  with  the  general  rule  prescribed  by 
the  statute,  esi^ecially  since,  by  the  authority  of  Sec.  3732, 
Eev.  Sts.,  contracts  for  these  supplies  could  legally  be  made 
in  the  absence  of  an  appropriation.    XXXIX,  527. 

11.  Contracts  "for  personal  services,"  specially  excepted  by 
the  statute — Sec.  3700,  Rev.  Sts. — from  the  application  of  the 
provision  as  to  advertising  for  i^roposals,  are  contracts  for 
expert  or  skilled  service  to  be  performed  by  the  contractor  in 
person.^     XXXVIII,  238. 

12.  Under  Sees.  3G79,  3732  and  3733,  Kev.  Sts.,  public  con- 
tracts for  supplies,  &c.,  for  which  money  has  been  appropri- 
ated by  Congress,  cannot  legally  be  made  to  extend  beyond 
the  fiscal  year  for  which  the  appropriations  have  been  pro- 
vided, or  to  bind  the  government  to  the  payment  of  any  sum 
or  sums  not  embraced  in  such  api)ropriations.  XXXI,  10, 
392.  Military  contracts,  (including  leases,)  will  thus,  where 
practicable,  properly  be  made  to  run  concurrently  with  the 
fiscal  year  in  or  for  which  they  were  made.^    XXXV,  013. 

So  held  that  a  contract  of  lease  made  for  a  term  of  years, 
(as  three,  five,  or  ninety  nine  years,)  at  a  certain  stated  rent, 
would  be  in  derogation  of  the  existing  law  (Sec.  3079,  Eev. 
Sts.,)  and,  unless  specially  authorized  by  statute,  inoperative, 
even  though  providing  that  future  rents  should  not  be  payable 
unless  api:)ropriations  were  actually  made  for  their  ijayment.^ 

^  As  to  the  meaning  of  this  term,  see  X  Opins.  of  Attvs. 
Gen.  5,  201;  also  G.  O.  10,  Hdqrs.  of  Army,  of  1879,  p.  15; 
do.  72  of  same,  p.  52 ;  do.  40  of  1880,  p.  58.  In  the  opinions 
of  the  Attorney  General  on  the  "  Fifteen  per  cent.  Contracts," 
of  April  27  and  May  3,  1877,  (XV  Opins.  — ,)  it  is  held  that  a 
contract  for  the  cutting  and  dressing  of  stone  for  a  public 
building  was  not  a  contract  for  "personal  services,"  inas- 
much as  such  work  was  not  to  be  performed  by  the  contractor 
l^ersonally  but  by  workmen  employed  by  him. 

'See  Curtis  v.  United  States,  2  Ct.  CI.  151;  IV  Opins.  of 
Attys.  Gen.  GOO ;  IX  Id.  18. 

^  See  the  opinion  of  the  Attorney  General,  of  April  27, 1877, 
in  the  case  of  the  "  Fifteen  per  cent.  Contracts,"  (XV  Opins. 
— ,)  where  it  is  held  that,  in  view  of  the  provision  of  Sec. 
3733,  Eev.  Sts.,  a  contract  for  a  public  building  cannot  "  be 
binding  so  far  as  to  affix  itself  to  future  appropriations  even 
if  it  is  subject  to  the  contingency  that  such  appropriations 
shall  be  made."    And  an  opinion  of  Atty.  Gen.  Mason  is  re- 


188  CONTRACT. 

And  adviser!  that,  where  it  is  desired  to  occupy  the  j^remises 
for  a  longer  term  than  one  year,  a  lease  should  be  taken  to  the 
end  of  the  current  fiscal  year  at  a  certain  rent,  and  then  a 
new  lease  be  entered  into  for  the  next  fiscal  year,  and  so  on ; 
a  lease  de  novo  being  necessary  for  each  fiscal  year  though 
the  successive  leases  be  mere  repetitions  and  extensions  of 
the  original  lease,  and  though  it  be  expressly  stipulated  in 
the  original  lease  that  the  United  States  shall  have  the  priv- 
ilege of  such  extensions  if  desired.  XXXII,  642 ;  XXXVII, 
222 ;  XLII,  G77  ;  XLIII,  98.  So  held  that  a  lease  of  land  at 
a  certain  rent,  for  an  imlefinlte  term,  would  not,  in  the  ab- 
sence of  specific  statutory  authority,  be  legal  or  operative 
beyond  the  end  of  the  existing  fiscal  year.  XXXYI,  315. 
So  of  a  proposed  contract  by  the  United  States  for  the  use, 
(for  a  fixed  compensation,)  of  a  ferry  for  an  indefinite  period. 
XLII,  454. 

But  held  that  the  provision  of  Sec.  3679,  Eev.  Sts.,  the  main 
object  of  which  was  to  protect  the  United  States  from  arbi- 
trary expenditures  and  imi:>rovident  pecuniary  obligations  on 
the  part  of  executive  officials,  would  not  preclude  the  taking 
from  a  citizen,  by  the  authority  of  the  Secretary  of  War,  of 
a  lease  for  five  or  more  years,  of  land  required  for  military 
purposes,  where  no  rent  tchatever  was  reserved  therein,  or 
where  the  rent  reserved  was  a  mere  nominal  sum  inserted  by 
way  of  formal  consideration — as  one  dollar  i)er  annum.  XLII, 
564. 

13.  Where  the  appropriation  Act  for  a  certain  fiscal  year 
approi^riated  a  certain  sum  for  an  arsenal,  which  was  insuffi- 
cient to  comi:>lete  the  proposed  edifice,  held,  in  view  of  the 
provisions  of  Sees.  3679  and  3733,  Eev.  Sts.,  that  the  Secre- 
tary of  War,  or  the  ordnance  officer  in  charge  of  the  work, 
would  not  be  authorized  to  enter  into  a  contract  for  the  build- 
ing of  the  entire  structure,  but  could  legallj^  contract  only 

ferred  to,  Avhere  a  contract  of  this  class  proposing  to  bind  the 
government  to  loayments  in  advance  of  appropriations  "  was 
held  to  be  of  no  validity,  even  though  it  provided  that  such 
contract  should  depend  tor  its  validity  upon  the  contingency 
that  an  appropriation  should  be  made  and  such  appropria- 
tion was  in  fact  thereafter  made."  And  similarly  held  by  the 
Attorney  General  in  the  further  opinion  in  regard  to  the  same 
Contracts  of  May  3,  1877,  (XY  Opins.  — .) 


CONTRACT.  189 

for  the  buildiDg  of  such  portion  as  couhl  be  constructed  for 
the  amount  appropriated.^     XXXIX,  G12. 

14.  Although  public  contracts  cannot  in  general  be  made 
in  advance  of,  or  in  the  absence  of,  a  proper  ai)proi)riation 
for  the  puri)ose,  or  other  siDecial  statutory  authority,  yet  from 
this  rule  are  expressly  excepted,  by  Sec.  3732,  Eev.  Sts.,  mili- 
tary (and  naval)  contracts  "for  clothing,  subsistence,  forage, 
fuel,  quarters,  or  transportation,"  which,  however,  it  is  added, 
"  shall  not  exceed  the  necessities  of  the  current  year."^  Such 
contracts  may  therefore  be  entered  into  irresi^ective  of  the 
adequacy  of  the  appropriations,  or  entirely  on  credit,  where 
Congress  has  omitted,  (as  it  did  in  the  session  ending  March 
4,  1877,)  to  make  any  appropriations  at  all  for  the  army  for  a 
fiscal  year.  But  lield  that  by  the  term  "current  year"  was 
to  be  understood  current  fiscal  year,  and  that,  in  the  excepted 
cases,  the  military  authorities  could  bind  the  government  by 
contracts  only  for  necessary  supplies  for  the  fiscal  year  in  which 
such  contracts  were  made.^    XXXYIII,  504 ;  XLII,  135. 

15.  Sec.  3G90,  Eev.  Sts.,  in  providing  that  balances  of  appro- 
priations for  any  fiscal  year  remaining  unexpended  at  the  end 
of  such  year  shall  not  be  applied  to  the  "fulfillment"  of  any 
contracts  except  those  "properly  incurred  during  that  year," 
expressly  excepts  "permanent  (or  indefinite,")  appropriations. 
The  existing  law,  (Sec.  1G61,  Eev.  Sts.,)  makes  a  permanent 
appropriation  of  a  certain  sum  annually  "  for  the  purpose  of 
providing  arms  and  equipments  for  the  militia."  Held  that  a 
balance  of  this  appropriation,  remaining  unexpended  on  the 
last  day,  (June  30th,)  of  a  certain  fiscal  year,  could  legally 
be  used  for  the  payment  of  a  contractor  in  December  follow- 
ing, under  a  contract  entered  into,  in  Xovember,  with  the 
Ordnance  department  for  the  manufacture  of  an  arm  intended 
to  be  issued  to  the  militia.     XXXI,  ^^t. 

16.  Under  Sees.  3739-3742,  Eev.  Sts.,  it  is  illegal  for  an 
officer  of  the  United  States  to  enter  into  a  contract  or  make 
a  purchase  of   a  firm  or  association,  (not  incorporated,)  of 

^  See  the  opinion  of  the  Attorney  General  of  Ai)ril  27, 1877, 
cited  in  the  last  note. 

^  As  to  the  reason  of  this  statute,  see  the  opinion  of  Xelson 
J.  in  the  case  of  The  Floyd  Acceptances,  7  Wallace,  Q^b. 

^  To  a  similar  eftect,  see  subsequent  opinions  of  the  Attor- 
ney General  of  June  19,  187G,  and  March  21,  1877,  (XY 
Olfins.  — .) 


190  CONTRACT. 

which  a  member  of  or  delegate  to  Congress  is  a  member  or  in 
whicli  one  is  i:)ecnniarily  interested.^     XLII,  344. 

17.  Par.  1002  of  the  Army  Eegnlations  prohibits  purchases 
by  officers  of  the  army  "from  any  other  i^erson  in  the  military 
service."  Held  that  this  prohibition  did  not  embrace  civilians 
emi^loyed  in  the  public  service  under  the  War  Department, 
or  in  connection  with  the  military  administration,  and  there- 
fore did  not  preclude  the  making  of  a  contract  by  an  ord- 
nance officer,  as  representing  the  United  States,  with  a  civil 
employee  at  an  Arsenal,  for  the  use  of  an  invention  patented 
by  the  latter.^     XXI,  320  5  XLII,  308. 

18.  In  view  of  the  positive  prohibition  of  Sec.  3737,  Eev. 
Sts.,  that  no  contract  or  interest  therein  shall  be  transferred 
by  the  contractor,  and  the  further  i^rovision  that  any  such 
transfer  shall  o^ierate  as  an  annulment  of  the  contract,  '^  so 
far  as  the  United  States  are  concerned,"  held  that  an  officer 
of  the  army  representing  the  United  States  in  a  contract  for 
military  transportation,  would  not  be  authorized,  of  his  own 
discretion,  to  consent  or  waive  objection  to  an  assignment,  in 
whole  or  in  part,  of  a  contract,  by  the  contractor,  so  as  to 
admit  the  assignee  to  i^erform  the  service.^  XXXI,  436; 
XXXYII,  13. 

1  That  Sec.  3739,  Eev.  Sts.,  does  not  aftect  contracts  made 
with  persons  who  have  been  simply  elected  members  of  or  dele- 
gates to  Congress,  but  have  not  actually  become  such  by  being 
sworn  in — see  opinion  of  the  Attorney  General  of  May  19, 
1877,  (XV  Opins.  — ,)  citing  XIV  Opius.  400. 

'  See  United  States  v.  Burns,  12  Wallace,  251-2 ;  X  Opins. 
of  Attys.  Gen.  2. 

^  That  an  assignment  of  a  contract  transfers  no  legal  claim 
or  right  of  action  to  the  assignee,  and  that  a  contract  when 
assigned  is  no  longer  binding  upon  the  United  States,  see  — 
Wheeler  v.  United  States,  5"  Ct.  CI.  504 ;  Wanless  v.  United 
States,  6  Id.  123 ;  Gill  v.  United  States,  7  Id.  523 ;  McCord  v. 
United  States,  9  Id.  150 ;  Francis  v.  United  States,  11  Id.  038 ;  X 
Opins.  of  Attys.  Gen.  523.  But  it  has  been  held  by  the  At- 
torney General  that  the  statute  on  the  sul)iect,  (Sec.  3737,  Eev. 
Sts.,)  is  intended  simply  for  the  beneht  and  protection  of  the 
United  States,  whicli,  therefore,  is  not  comi)elIed  to  avail 
itself  of  a  transfer  by  the  contractor  to  annid  tlie  contract, 
but  may  recognize  the  same  and  accei)t  and  pay  the  assignee. 
''Were  it  to  be  held,"  observes  the  Attorney  General,  "that 
a  transfer  of  an  interest  would  absolutely  avoid  the  contract, 
it  wouhl  enable  any  party  making  a  contract  with  the  United 
States  to  avoid  it  by  simx)ly  transferring  an  interest  therein, 


CONTRACT.  191 

19.  Wliere  a  contract  lias  beeu  once  formally  entered  into 
with  a  certain  party, — for  the  officer  representing  the  United 
States  to  assume  to  admit  additional  i)arties  into  the  agree- 
ment and  undertaking,  (thus  in  fact  consenting  to  a  transfer 
by  the  contractor  of  an  interest  in  the  contract,)  would  be 
wholly  unauthorized.     XXXVI,  463. 

20.  A  mere  i^ower  of  attorney  given  by  a  contractor  to 
another  person  authorizing  him  to  receive  for  the  contractor 
moneys  coming  due  under  the  contract,  cannot  of  course 
operate  as  a  transfer  of  an  interest  therein ;  but  where,  by  a 
written  agreement  between  a  contractor  and  another  party, 
the  latter  was  empowered  to  receive  the  payments  from  the 
United  States,  in  consideration  of  which  he  undertook  to  con- 
tinue and  complete  the  work  contracted  for,  held  that  such 
agreement  was  a  power  coupled  with  an  interest,  and  operated 
as  a  transfer  within  the  meaning  of  Sec.  3737,  Eev.  Sts.^ 
XXVIII,  340. 

21.  Where,  by  an  express  stipulation  in  a  contract  for 
quartermaster  stores,  made  in  accordance  with  a  specific 
advertisement,  the  time  within  which  the  same  were  to  be 
furnished  to  and  received  bj'  the  United  States,  Avas  limited 
to  a  stated  period,  held  that  the  Secretary  of  War  would  not 
be  authorized  to  extend  the  operation  of  the  contract  beyond 

which  is  a  construction  manifestly  inadmissible."  Opinion  in 
the  case  of  the  "  Fifteen  i)er  cent,  contracts,''  of  April  27, 
1877,  (XV  Opins.  — .)  And  similarly  held  by  the  same 
authority  in  a  later  opinion  of  March  7, 1879,  (XVI  Opins.  — ,) 
— that  while  the  United  States  may  avail  iiself  of  an  assign- 
ment to  declare  the  contract  annulled,  it  is  not  required  to 
do  so,  but,  if  deemed  to  be  for  its  interest,  may  recognize  the 
assignee.  But  it  is  clear  tliat  an  officer  of  the  army  could  not 
properly  assume  to  treat  an  assignment  of  a  contract,  (or  inter- 
est therein,)  as  valid,  without  the  authority  and  direction  of  the 
Secretary-  of  War.  That  for  a  mail  contractor  to  contract 
with  another  person  to  transport  the  mail  for  him,  and  as  his 
servant  or  employee,  was  not  an  assignment  of  his  contract 
with  the  United  States,  was  held  in  the  recent  case  of  Frye  v. 
Burdick,  G7  Maine,  408. 

'See  opinions  of  the  Attorney  General  of  April  27, 1877, 
(XV  Opins.  — ,)  and  March  7,  1879,  (XVI  Opins. — ;)  also 
Francis  i\  United  States,  11  Ct.  CI.  038. 

That  a  power  coupled  with  an  interest  is  irrevocable  see 
Hunt  V.  Bousmaniere's  Admrs.,  2  Mason,  244 ;  Wheeler  r. 
Knaggs,  8  Hammond,  109  f  McDonald  i\  Admr.  of  Black,  20 
Ohio,  185 ',  VII  Opins.  of  Attjs.  Gen.  35. 


192  CONTRACT. 

that  i}eriod,  so  as  to  admit  tlie  delivery  of  additional  stores 
under  the  same,  hut  that,  for  such  additional  quantity,  it 
would  be  necessary  to  contract  de  novo  in  the  regular  legal 
mode,  upon  new  advertisement,  proposals,  and  award. 
XXXVI,  403.  And  held  that  the  fact  that  the  contract  con- 
tained a  stipulation  to  the  effect  that  the  same  might  upon 
mutual  agreement  be  abrogated,  modified,  or  extended,  did 
not  add  to  the  authority  of  the  Secretary  in  such  a  case ;  such 
a  stipulation  being  in  derogation  of  law.^  XXXVII,  478 ; 
XXXIX,  054 ;  XLI,  182.  [But  see  authorities  cited  at  end 
of  note-  to%ext  paragraph.] 

22.  It  is  a  general  principle  that  after  a  government  con- 
tract has  been  once  duly  consummated,  the  same  cannot 
legally  be  modified  as  to  anj-  of  its  material  stipulations  by 
the  consent  of  the  immediate  parties.-    To  agree  to  such  a 


^  In  a  case  of  a  contract  in  the  Post  Office  Department,  con- 
taining a  stipulation  for  extension,  &c.,  by  the  authority  of 
which  the  operation  of  the  contract  had  been  extended  beyond 
the  period  expressly  limited  therein,  although  by  a  statute 
governing  the  case  it  was  required  that  all  such  contracts 
should  be  nmde  ui^on  advertisement,  proposals,  &c.,  it  was 
held  by  Attorney  General  Hoar,  XIII  Opins.  175-0,  as  fol- 
lows : — ^^  I  am  of  the  opinion  that  the  provisions  of  that 
statute  a])ply  to  tlie  contract  in  question,  and  that,  although 
the  contract  contained  a  provision  for  its  extension  and  mod- 
ification at  the  pleasure  of  the  contracting  parties,  such  a 
provision  was  not  authorized  by  law.  If  a  contract,  which 
the  law  only  allows  to  be  made  in  i^ursuance  of  an  advertise- 
ment, could  afterward  be  renewed  and  extended  at  the  pleas- 
ure of  the  Postmaster  General  without  any  advertisement, 
it  would  be  in  tlie  power  of  that  officer  and  his  successors  in 
office,  unless  restrained  by  some  subsequent  act  of  the  legisla- 
ture, to  make  for  all  future  time  such  contracts  as  he  might 
think  expedient,  without  reference  to  the  conditions  con- 
tained in  the  original  advertisement  for  proi)Osals,  or  to  the 
terms  upon  which  the  contract  was  offered  to. public  compe- 
tition." 

-''  The  power  vested  in  the  head  of  an  executive  department 
to  make  contracts  for  work  or  materials  d<jes  not  imply  the 
power  to  rescind  or  alter  such  contracts  v/hen  made.''  IX 
Oijins.  of  Attys.  Gen.  80.  "  The  authority  to  make  a  con- 
tract implies  no  authority  to  change  it  after  it  is  made."  Id. 
104.  "  When  the  contract  is  closed,  the  general  rule  is  that 
it  must  be  executed  without  change  of  terms.  *  *  *  The 
terms  of  contracts  made  by  government  officers  are  not  in 
general  subject  to  change  at  the  will  of  either  party,  or  of 


CONTRACT.  193 

modification  is  in  effect  to  make  a  new  contract.  Thus  where 
a  contract  had  been  duly  made  and  executed  for  the  furnish- 
ing of  a  certain  specified  quantity  of  military  stores,  held  that 
an  agreement  subsequently  entered  into  between  the  con- 
tractor and  the  of&cer  representing  the  United  States,  that 
the  former  should  deliver  and  the  latter  receive,  under  the 
contract,  a  certain  additional  quantity  of  the  same  stores, 
was  not  merely  a  modification  of  the  existing  contract,  but 
was  in  fact  the  making  of  a  new  contract,  and  this  without 
a  compliance  with  the  formalities  required  by  statute.  And 
advised  that  the  stipulation  thus  agreed  to,  (but  not  in  fact 
carried  into  effect,)  be  rescinded  as  unauthorized  and  in  con- 
travention of  law.     XLI,  182. 

23.  A  debt  due  to  the  United  States  is  i)ublic  property  and 
cannot  be  surrendered  or  its  payment  waived  by  an  executive 
ofl&cer  in  the  absence  of  authority  from  Congress.  So  held 
that  the  Secretary  of  War  was  not  empowered  ^to  release  a 
contractor  from  a  pecuniary  liability  incurred  by  him  for  a 
delay  or  other  neglect  in  duly  performing  his  contract^  and 
expressly  defined  and  agreed  upon  therein  as  '' liquidated 
damages,"^  (XXXVII,  442;  XXXIX,  341;)  or  to  allow  a  con- 
both  x>ai'ties.  If  they  were,  every  legal  guard  against  fraud 
and  favoritism  in  making  contracts  could  be  easilv  evaded." 
X  Id.  480-1. 

The  later  authorities,  however,  api^ear  to  favor  the  exer- 
cise, by  the  head  of  a  Department,  of  a  discretion  to  consent 
to  modifications  of  detail  in  the  course  of  the  execution  of 
l)ublic  contracts,  where  such  modifications,  (not  being  in 
contravention  of  law,)  are  found  to  be  for  the  i)ublic  interest, 
and  are  not  of  such  a  character  as  to  oi)erate  to  the  pecuniary 
disadvantage  of  the  United  States.  See  United  States  r. 
Corliss  Steam  Eng.  Co.,  1  Otto,  321;  Opinion  of  Attorney 
General  of  April  12,  1878,  (XY  Opins.  — .) 

^  Where  it  is  expressly  stipulated  in  a  contract  that,  in  the 
event  of  non-j)erformauce,  the  contractor  shall  i)ay  to  the 
other  i)arty  a  certain  (reasonable)  amount  of  money,  the  same 
will  in  general  properly  be  treated,  not  as  a  penal  sum  but  as 
liquidated  damages — whether  or  not  it  be  so  designated  in 
terms.  See  Ivinson  v.  Althorp,  1  Wyoming,  71;  also  citation 
in  next  note.  But  it  is  held  by  the  Attorney  General,  in  an 
opinion  of  Dec.  20,  1877,  (XV  Opins.  — ,)  that  whether  a 
forfeiture  stipulated  in  a  contract  to  be  incurred  b^'  the  con- 
tractor, in  the  event  of  non-performance,  was  to  be  viewed  as 
a  penalty  or  as  liquidated  damages,  was  a  question  of  intent^ 
13  d 


194  CONTRACT. 

tractor,  in  settlement,  after  a  failure  fully  to  perform  his 
contract,  a  certain  percentage  of  payments,  stipulated  in  tlie 
contract  to  be  withheld  from  him  in  the  event  of  such  failure,^ 
(XXVIIT,  346,  005;  XXXI,  93;  XXXVII,  441;  XXXIX, 
341;)  or  to  omit  to  charge  a  contractor  with  the  difference 
between  the  contract  price  and  the  price  which  the  govern- 
ment was  obliged  to  i)ay  in  sui)plying  by  i)urchase  in  the 
market  articles  failed  to  be  furnished  according  to  the  con- 
tract, where  it  was  expressly  stipulated  in  the  contract  that 
the  amount  of  such  difference  should  be  charged  against  the 
contractor.  XXXII,  6;  XXXYII,  437.  And  held  that  the 
fact  that  the  failure  of  the  contractor  was  due  not  to  his  fault, 
but  to  hardship  or  misfortune,  could  not  add  to  the  authority 
of  the  Secretary  of  War  in  the  matter.^     XXXYII,  437. 

24.  Where  it  was  covenanted  in  a  contract  that  '  ten  per 
cent  of  each  partial  payment  should  be  withheld  until  the 
comx)letion  of  the  contract,'  held  that  this  reservation  could 
not  be  continued  so  as  to  api^ly  to  payments  under  a  second 
contract  by  which  the  agreement  of  the  contract  containing 
the  covenant  was  in  fact  extended.  This  for  the  reason  that 
the  second  contract,  though  an  extension  of  the  first,  was  in 
law  and  fact  a  new  contract,  and  could  not  therefore  be  affected 
by  a  condition  expressly  limited  in  its  operation  to  the  life  of 
a  previous  contract  which  had  been  fully  completed.  XLI, 
625. 

25.  The  Secretary  of  War,  in  the  absence  of  authority  from 
Congress,  is  not  empowered,  whatever  be  the  merits  of  the 
case,  to  release  a  contractor  from  the  due  i)erformance  of  his 

and  that  the  designation  of  the  amount  named  as  "liquidated 
damages"  was  not  conclusive  upon  this  question.  In  a  case, 
therefore,  where  the  forfeiture  appeared  to  have  been  pre- 
scribed simply  for  the  purpose  of  securing  the  performance, 
and  the  failure  of  the  contractor  had  been  without  fault  on 
his  part  and  had  caused  no  loss  to  the  United  States,  it  was 
held  that  the  Secretary  of  War  was  authorized  to  release  the 
contractor  from  the  forfeiture.  And  see  in  this  connection 
XII  Opins.  112. 

^  "  The  ten  per  cent,  reserved  I  regard  as  being  in  the  nature 
of  liquidated  damages,  which  having  once  accrued  upon  the 
forfeiture  of  the  contract,  be(;omes  a  part  of  the  money  of  the 
government,  which  can  Idc  withdrawn  from  its  uses  only  by 
law."    IV  Opins.  of  Attys.  Gen.  284.     And  see  II  Id.  481. 

^See  II  Opins.  of  Attys.  Gen.  481;  IX  Id.  81. 


CONTRACT.  195 

contract/  or  to  relieve  or  compensate  liim  on  account  of  losses 
suffered  by  him  in  fulfilling  or  attempting  to  fulfill  his  con- 
tract, where  there  has  been  no  breach  on  the  part  of  the 
United  States.^  In  such  a  case  Congress  alone  can  grant 
relief.*  XXXYII,  440. 

26.  Where  a  forfeitiire  had  been  legally  incurred  by  a  con- 
tractor because  of  the  non-performance  of  his  contract  within 
the  time  stipulated  by  its  terms,  held  that  the  Secretary  would 
not  be  empowered  to  relieve  him  therefrom  on  the  ground 
that  by  an  agreement  or  understanding  between  himself  and 
the  officer  representing  the  government  at  the  time  of  enter- 
ing into  the  contract,  certain  further  time  was  to  be  allowed 
for  the  performance;  such  agreement?  or  understanding  not 
having  been  incorporated  into  the  formal  written  contract  as 
made  and  executed  by  the  parties,  and  being  therefore  quite 
ineffectual  to  vary  its  terms  or  operation.^    XLIII,  395. 

27.  Where,  after  a  contract  for  quartermaster  stores  had 
been  duly  subscribed  and  entered  into  by  and  between  the 
lowest  bidder  and  the  proper  official  representative  of  the 
government,  it  was  ascertained  that  the  former  had  failed 
fully  to  perform  a  certain  contract  sometime  previoush^  made 
between  himself  and  the  United  States,  held  that  this  fact 
could  not  authorize  the  Secretary  of  War  to  cancel  the  con- 

^  See  Opinion  of  the  Attorney  General  of  April  12,  1878, 
(XV  Opius.  — .) 

^  In  an  opinion  addressed  to  the  Secretary  of  War,  in  regard 
to  an  application  for  relief  by  a  contractor  for  work  on  the 
Washington  Aqueduct,  Atty.  Gen.  Black,  (9  Opins.  81,)  re- 
marks as  follows: — "He  now  says  he  is  doing  the  work  at  a 
loss,  and  asks  you,  in  a  memorial,  either  to  give  him  a  larger 
compensation  than  he  bargained  for,  or  else  to  release  him 
from  the  contract.  You  have  no  authority  to  do  eitlier  of 
these  things.  You  cannot  absolve  him  from  his  obligation 
to  do  the  work ;  and,  if  he  does  it,  you  cannot  authorize  him 
to  be  paid  for  it  at  a  higher  x^i'ice  than  the  contract  stipu- 
lates for.  =H:  *  #  jj^  short  you  have  no  i)ower  to  relieve 
him  from  the  hardship  he  complains  of,  either  by  gi^ing  him 
damages,  by  releasing  him  from  his  present  contract,  or  by 
making  a  new  one.  *  *  *  if  the  contractor  quits  the 
work,  or  otherwise  violates  the  covenants  he  has  made  with 
the  government,  he  must  do  so  at  his  own  peril  and  that  of 
his  sureties." 

^'See  Brawlev  ^'.  United  States,  6  Otto,  173  j  Harvey  v. 
United  States,  8  Ct.  CI.  501. 


106  CONTRACT. 

tract  tlius  formally  executed  and  enter  into  a  new  contract 
with  another  party.     XL  I,  258. 

28.  Where,  in  a  contract  with  the  quartermaster  depart- 
ment for  wood,  it  was  covenanted  that,  if  the  wood  furnished 
was  deficient  in  quantity  or  quality,  the  quartermaster,  repre- 
senting the  United  States  in  the  transaction,  should  have  the 
I)Ower  to  withhold,  from  the  sum  stipulated  to  he  i)aid,  such 
amount  as  might  be  necessary  to  indemnify  the  government 
against  the  deficiency,  and  no  amount  was  so  withheld,  but 
the  entire  quantity  of  wood  delivered  was  accepted,  and  the 
contractor,  on  the  completion  of  his  contract  was  paid  in 
full ;  but  subsequently  it  was  discovered  that  there  had  been 
a  deficiency  in  the  amount  and  quality  of  the  wood  as  fur- 
nished;— Jield,  in  the  absence  of  ony  evidence  of  fraud  on  the 
part  of  the  contractor,  that  he  and  his  sureties  could  not  be 
held  liable  on  the  bond  given  by  them  to  secure  the  per- 
formance of  the  covenants  of  the  contract.    XXIX,  53. 

29.  Where  a  vessel  was  duly  chartered  from  the  owner  by 
the  quartermaster  department,  to  carry  coal  from  Philadel- 
phia to  Key  West  at  a  certain  freight,  and  while  en  route  was 
stopped  at  the  Delaware  breakwater  by  the  military  authori- 
ties, and  comx^elled,  against  the  protest  of  the  master,  to  dis- 
charge her  cargo  at  Fort  Monroe,  held  that  the  United  States 
was  legally  bound  to  pay  to  the  owner  the  full  freight  to  Key 
West  according  to  the  terms  of  the  contract.     XX,  491. 

30.  It  appears  to  be  established  that,  in  settling  with  a 
contractor  under  a  duly  executed  contract,  there  may  be 
ofi'set,  against  the  amount  due  to  him,  an  amount  due  hy  him 
as  liquidated  damages  under  the  terms  of  another  contract 
which  he  has  failed  to  perform.^  But  where  the  amount  due 
from  the  contractor  is  not  liquidated  by  the  contract,  the 
government  can  have  no  right  to  insist  that  a  certain  sum 
fixed  by  itself  as  properly  due  from  the  contractor  shall  be 
set  off  against  the  amount  due ^o  him;  and  if  the  parties 
cannot  mutually  agree  upon  a  balance,  the  proper  course  will 
in  general  be  for  the  Secretary  of  War  to  decline  payment 
until  the  account  shall  be  adjusted  by  the  Court  of  Claims, 
which  has  jurisdiction  of  all  set-offs  and  counter  claims  on 
the  part  of  the  United  States  against  contractors  and  claim- 
ants.    [See  Sec.  1509,  Kev.  Sts.]     XXXII,  257. 

VSee  IV  Opins.  of  Attys.  Gen.  554j  XI  Id.  126. 


CONVENING  OFFICER.  197 

31.  Where,  in  tlie  settlement  of  the  account  of  a  Railroad 
Company  under  a  contract  for  military  transportation,  there 
was  set  off  in  the  quartermaster  department  against  the 
amount  due,  the  sum  of  certain  amounts  regularly-  and  vol- 
untarily paid  by  the  United  States  to  the  Company  for  trans- 
portation some  five  years  previously,  on  the  ground  that  these 
amounts  Avere  in  excess  of  the  usual  rates,  lieJd  that  such 
offset  was  without  sanction  of  law  and  unauthorized,  there 
being  no  evidence  of  fraud  on  the  part  of  the  contractor  in 
obtaining^  the  payments,  or  of  collusion  between  him  and  the 
officers  who  represented  the  United  States  in  receipting  the 
accounts  and  maknig  payment.     XXXY,  291. 

32.  Sec.  3709,  Rev.  Sts.,  requires  that  when  contracts  are 
made  for  supplies  or  services,  they  shall  be  made  in  a  certain 
form,  but  it  does  not  necessarily  i)reclude  having  i)ublic  work 
performed  by  hired  laborers  where  it  is  not  deemed  desirable 
to  enter  into  a  formal  agreement  with  a  coutractor  for  the 
puri)ose.  So  lield  that  the  Secretary  of  War,  under  whose 
direction  the  appropriations  for  the  construction  of  the  new 
State,  War  and  Xavy  Department  Building  were  required  by 
statute  to  be  expended,  was  emi)owered  to  cause  the  plas- 
tering, or  other  particular  work  therein  callable  of  being 
properly  done  by  hired  day  labor,  to  be  so  done,  instead  of 
under  contract  made  upon  advertisement  and  proposals,  pro- 
vided he  deemed  it  to  be  for  the  public  interest  to  prefer  the 
former  mode.    XLI,  121. 

CONVENING  OFFICER. 

See  seventy  SECOND  ARTICLE. 
SEVENTY  THIRD  ARTICLE. 
SEVENTY  FIFTH  ARTICLE  $  8. 
SEVENTY  NINTH  ARTICLE  v^  1. 
EIGHTIETH  ARTICLE  ^S  2. 
EIGHTY  FIRST  ARTICLE  ^  1. 
EIGHTY  SECOND  ARTICLE  §>  1. 
ONE  HUNDRED  AND  FOURTH  ARTICLE. 
COURT  MARTIAL,  I  $  2,  4,  5,  8,  17. 
REPRIMAND  ^  1. 
EEVIEWDsG  AUTHORITY  $  1. 


108  CONVENINa  ORDER — COUNSEL. 


CO^VEmNG  ORBER, 

See  seventy  FIFTH  ARTICLE  $  8. 
SEVENTY  NINTH  ARTICLE. 
EIGHTY  FIRST  ARTICLE  §  2. 
ORDER,  11. 
RECORD  §  1,  c. 

COPY  OF  PROCEEDINGS. 

See  ONE  HUNDRED  AND  FOURTEENTH  ARTICLE. 

CORRECTION  OF  RECORD. 

See  record  §  1,  I. 

REVIEWING  OFFICER  §  3. 
REVISION. 

COUNSEL,  I— IN  CIVIL  PROCEEDINGS. 

Under  existing  law,  neither  department  nor  other  com- 
manders, nor  officers  sued  or  prosecuted  on  account  of  acts 
done  in  the  performance  of  duty,  are  authorized  to  employ 
counsel — IT.  S.  district  attorneys  or  other — at  the  expense  of 
the  United  States.  Any  officer  requiring  to  be  defended  or 
assisted  by  counsel  in  his  official  capacity  may  apply  therefor 
to  the  Secretary  of  War,  who,  in  a  proj^er  case,  will  refer  the 
application  to  the  Attorney  General  for  action,  according-  to 
the  provisions  of  section  17  of  the  Act  of  June  22,  1870.^ 
XXVI,  22,  306.  [By  this  section,  incorporated  in  Sec.  189, 
Eev.  Sts.,  it  was  prohibited  to  the  heads  of  the  executive 
departments,  other  than  the  Department  of  Justice,  to  employ 
attorneys  or  counsel  at  the  exi)ense  of  the  United  States,  and 
declared  that  when  in  need  of  legal  counsel  or  advice  they 
should  call  upon  the  last  named  department  to  provide  the 
same.  See  Proceedings  at  law  against  officer,  &c. 
§2.] 

COUNSEL,  II— TO  ASSIST  A  JUDGE  ADVOCATE. 

In  cases  of  exceptional  difficulty  and  public  importance, 
civil  counsel  were  formerly  not  unfrequently  retained  to 

^See  the  directions  published  in  G.  0. 15,  War  Dept.,  1874. 


COUNSEL.  199 

assist  the  judge  advocate.  Since  the  creation,  however,  of 
the  office  of  Judge  Advocate  General  of  the  Army,  and  of 
the  corps  of  Judge  Advocates,  by  the  Act  of  July  17,  1862, 
such  instances  have  been  of  tlie  rarest  occurrence.  V,  446; 
XXII,  345.  [Under  the  existing  law,  indeed,  counsel  could 
be  employed,  (at  the  public  expense,)  for  this  purpose  only 
through  the  Department  of  Justi(;e  upon  the  request  or 
recommendation  of  the  Secretary  of  War.  See  Proceed- 
ings AT  LAW  AGAINST   OFFICER,  &C.,  §  2.] 

COUNSEL,  III— FOR  THE  ACCUSED. 

1.  An  officer  or  soldier  i^ut  upon  trial  before  a  court  mar- 
tial  is  not  entitled  as  of  right  to  have  counsel  i)resent  Avith 
him  to  assist  him  in  his  defence,  but  the  privilege  is  one 
which  is  almost  invariably  conceded,^  and  where  it  is  unrea- 
sonably refused,  such  refusal  may  constitute  ground  for  the 
disapproval  of  the  proceedings.  IX,  538;  XXXII.  519.  A 
court  martial,  however,  is  not  required  to  delay  an  unreason- 
able time  to  enable  an  accused  to  provide  himself  with  coun- 
sel.   XXX,  102.     [See  Xinety  Third  Article  §  0.] 

2.  While  reasonable  facilities  for  procuring  such  counsel  as 
he  may  desire  should  be  afforded  an  accused,  his  claim  must 
be  regarded  as  subordinate  to  the  interests  of  the  service. 
Thus  where  an  accused  officer  applied  to  the  department 
commander  who  had  convened  the  court,  to  authorize  a  par- 
ticular officer,  Avhom  he  desired  as  counsel,  to  act  in  that 
capacity,  and  this  officer  could  not  at  the  time  be  spared  from 
his  regular  duties  without  material  i)rejudice  to  the  public 
interests,  held  that  the  commander  was  justified  in  denying 
the  api^lication,  and  further  that  the  validity  of  the  subse- 
quent proceedings  and  sentence  in  the  case  was  not  affected 
by  such  denial.     XXXII,  519. 

3.  An  accused,  i^rior  to  arraignment,  even  if  in  close  arrest, 
should  be  allowed  to  have  interviews  with  such  counsel,  mil- 
itary or  civil,  as  he  may  have  selected.  XII,  441 ;  XXI,  141. 
So,  his  counsel  should  be  permitted  to  have  interviews  with 
any  accessible  military'  x^^rson  whom  it  may  be  proposed  to 
use  as  a  material  witness,  or  whose  knowledge  of  facts  may 
be  useful  to  the  accused  in  preparing  for  trial.     XIX,  33. 

^  Comi>are,  on  this  subject.  People  v.  Daniell,  6  Lansing,  44  j 
People  V.  Yan  Allen,  ^d  X.  York,  31. 


200     COURT  MARTIAL,   I — AUTHORITY  AND  FUNCTION. 

4.  A  military  court  has  no  authority,  (analogous  to  that 
sometimes  exercised  by  civil  courts  in  criminal  cases,)  to  assign 
counsel  to  an  accused  unprovided  with  counsel.  XIIT,  400. 
Nor  can  such  a  court  excuse  one  of  its  members  to  enable 
him  to  act  as  counsel  for  an  accused.     XXXV,  488,  490. 


COURT  MARTIAL,  I— AUTHORITY  AND  FUHCTIOIf. 

1.  Courts-martial  are  no  part  of  the  Judiciary  of  the  United 
States,  but  simj^ly  instrumentalities  of  the  Executive  i)ower. 
[Compare  President,  I  §  1.]  They  are  creatures  of  orders; 
the  power  to  convene  them,  as  well  as  the  power  to  act 
upon  their  proceedings,  being  an  attribute  of  command.  [See 
Seventy  second  Article  §  5 ;  One  hundred  and  fourth 
Article  §  4.]  But,  though  transient  and  summary,  their 
judgments,  when  rendered  upon  subjects  within  their  limited 
jurisdiction,  (see  Court-Martial,  II  §  1,)  are  as  legal  and 
valid  as  those  of  any  other  tribunals,  nor  are  the  same  sub- 
ject to  be  appealed  from,  set  aside,  or  reviewed,  by  the  courts 
of  the  United  States  or  of  any  State.^    Y,  656. 

2.  A  court  martial  should  in  general  be  left  to  determine 
its  own  course  of  procedure,  except  where  the  same  is  defined 
by  law  or  usage.  It  would  be  unwarranted  by  usage  to  re- 
quire in  Orders  that  a  court  martial  shall  axiopt  a  certain 
procedure  in  any  case  or  class  of  cases  as  to  a  matter  prop- 

^  See  Dynes  v.  Hoover,  20  Howard,  79 ;  Ex  parte  Vallan- 
digham,  1  Wallace,  243  ;  Fugitive  Slave  Law  Cases,  1  Blatch. 
635 ;  In  re  Bogart,  2  Sawyer,  402,  409  ;  Moore  v.  Houston, 
3  S.  &  R.  197 ;  Ex  parte  Dunbar,  14  Mass.  392 ;  Brown  v. 
Wadsworth,  15  Verm.  170  ;  People  v.  Van  Allen,  55  i<r.  York, 
31 ;  Perault  v.  Rand,  10  Hun,  222  ;  Ex  parte  Bright,  1  Utah, 
148,  154 ;  Moore  v.  Bastard,  4  Taunt.  67  ;  VI  Opins.  of  Attys. 
Gen.  415,  425.  "  No  acts  of  military  officers  or  tribunals, 
within  the  scope  of  their  jurisdiction,  can  be  revised,  set 
aside,  or  x>unished,  civilly  or  criminally,  by  a  court  of  com- 
mon law."  Tyler  v.  Pomeroy,  8  Allen,  484.  Where  a  court- 
martial  has  jurisdiction,  "its  proceedings  cannot  be  collater- 
ally impeached  for  any  mere  error  or  irregularity  committed 
within  the  sphere  of  its  authority.  Its  judgments,  when 
approved  as  required,  rest  on  the  same  basis  and  are  sur- 
rounded by  the  same  considerations  Avhich  give  conclusive- 
ness to  the  judgments  of  other  legal  tribunals,  inchuling  as 
well  the  lowest  as  the  highest,  under  like  circumstances." 
Ex  parte  Reed,  10  Otto,  13. 


I — AUTHORITY  AND   FUNCTION.     201 

erly  within  its  discretion.  XXXIV,  138.  Thus  a  commander 
could  not  properly  order  that  courts  martial  convened  by  him 
should  take  testimony  in  cases  in  which  the  accused  pleaded 
guilty,  though  he  might  properly  recommend  their  doing  so. 
XI,  234.     [See  §  9  infra.] 

3.  While  a  specific  punishment  may  be  recommended^  in 
Orders,  to  be  adjudged  by  courts  martial  in  a  certain  class  of 
cases,  it  is  not  comi)etent  to  order  such  courts  to  adopt  a  par 
ticular  form  of  sentence  in  any  case.  The  duty  and  discre- 
tion of  courts  martial  in  the  imposition  of  punishments  are 
prescribed  and  defined  by  the  xVrticles  of  War.     XXXI,  354. 

4.  It  may  be  said  to  be  a  x)rinciple  of  military  law  that  a 
court  martial  is  to  be  left  independent  as  to  matters  legally 
or  x)roperly  AAithin  its  own  discretion.  Such  a  court,  however, 
may  not  assume  authority  over  a  subject  belonging  to  the 
province  of  the  officer  by  whom  it  has  been  convened.  Thus, 
Avhile  it  may  decline  to  proceed  with  the  trial  of  a  case  mani- 
festly not  within  its  jurisdiction,  it  cannot  i)roperly  refuse  so  to 
proceed  on  the  ground  that  it  is  not  empowered  adequately  to 
punish  the  offender  upon  conviction ;  or  that  officers  junior 
to  the  accused  have  been  placed  upon  the  detail ;  or  that — 
the  detail  being  less  than  thirteen — a  greater  number  might 
have  been  put  ui)on  the  court  without  injurj^  to  the  service  j 
or  that  the  accused  has  not  been  placed  in  arrest.  A  court 
declining  to  go  on  with  a  trial  uj^on  any  such  ground  may  be 
peremi^torily  ordered  to  i^roceed  :  if  it  still  refuses,  the  pref- 
erable course  will  ordinarily  be  to  dissolve  it  in  General 
Orders,  (adding,  if  deemed  desirable,  an  expression  of  cen- 
sure on  account  of  its  contumacy,)  and  to  convene,  for  the 
trial,  a  court  composed  entirely  of  new  members.  XXI,  177  j 
XXV,  578 ;  XXVIII,  57. 

5.  A  court  martial  has  no  authority  over  the  i^erson  of  an 
accused  except  when  he  is  before  it  for  trial.  It  cannot 
arrest  him,  or,  by  its  own  order,  cause  him  to  be  brought  to 
the  place  of  trial  j  the  compelling  of  his  attendance  before 
the  court  being  a  duty  of  the  convening  offlcer  or  post  com- 
mander.^ XXII,  GOG ;  XXXIX,  44.  So,  a  court  martial  has, 
as  such,  no  authority  to  arrest,  or  to  require  its  judge  advocate 
or  other  ofiicer  to  arrest,  a  witness  suspected  of  false  swearing 
upon  a  trial  which  has  been  had  before  it :  in  such  a  case  its 

^  See  note  to  §  8  infra. 


20Ii     COURT   MARTIAL,    I — AUTHORITY   AND  FUNCTION. 

proper  course  is  to  report  the  facts  to  the  convening  authority 
for  his  action.     Ill,  109. 

6.  Charges  are  regularly  and  i^roperlj^  referred  to  a  court 
martial  for  trial  by  the  ofiicer  who  has  constituted  it,  (or  his 
superior,)  and  a  court  martial  may  in  general  properly  decline 
to  entertain  charges  otherwise  submitted.  The  validity, 
however,  of  the  proceedings  or  sentence  of  a  court  martial  in 
any  case  will  not  be  affected  by  the  circumstance  that  the 
charges  were  in  fact  irregularly  referred  to  it  by  a  commander 
inferior  to  the  convening  officer  and  without  having  been  ap- 
proved by  him.    XXII,  502 ;  XXVI,  107.    [See  Charge,  §  26.] 

7.  A  court  martial  is  not  authorized,  in  its  discretion  and 
of  its  own  motion,  to  reject  or  strike  out  a  charge  or  specifica- 
tion formally  referred  to  it  for  trial  by  competent  authority,  nor 
to  direct  or  permit  the  judge  advocate  to  drop  or  withdraw 
such  a  charge  or  specification,  or  enter  a  Jiolle  prosequi  as  to 
the  same.  For  such  action  the  authority  of  the  convening 
commander  is  requisite.^  But  where,  by  a  special  plea  or  objec- 
tion, an  issue  is  made  by  the  accused  as  to  the  sufficiency  of 
any  pleading,  the  court,  without  referring  the  question  to  the 
convening  ofiicer,  is  empowered  to  allow  the  plea  or  objection 
and  quash  or  strike  out  the  charge,  &c.  Ill,  230 ;  XXIX, 
370.  [As  to  the  authority  of  the  court  to  direct  an  amend- 
ment of  a  charge  or  specification,  see  Charge  §  28.] 

8.  When  a  court  martial  desires  to  have  the  benefit  of  the 
testimony  of  a  party  w^ho  has  not  been  introduced  as  a  wit- 
ness by  the  prosecution  or  defence,  it  may  properly  call  upon 
the  judge  advocate  to  have  such  party  summoned,  or — if  he 
is  a  military  person — may  api^ly  to  the  convening  authority 
or  post  commander  to  have  him  ordered  before  it  to  testify,^ 

iC;ompare  G.  C.  M.  O.  13,  Dept.  of  the  Missouri,  1877;  do. 
3G,  79,  Dept.  of  the  Platte,  1877;  do.  13,  Id.  1878;  do.  41,  Id. 
1880;  do.  45,  48,  Div.  of  Pacific  and  De})t.  of  Cal.  1880. 

2  It  has  not  been  the  practice  in  this  country  for  the  conven- 
ing authority  to  detail  an  ofiicer  to  attend  a  military  court  in  a 
ministerial  capacity—  to  summon  witnesses,  enforce  the  attend- 
ance of  the  accused,  &c.  In  the  special  case,  indeec],  of  the 
persons  charged  with  complicity  in  the  assassination  of  Presi- 
dent Lincoln,  and  tried  by  militaiy  commission,  it  was  ordered 
by  the  President— May  Ist,  1805— as  follows:  ''That  Brevet 
Major  General  ITartranft  be  assigned  to  duty  as  special  provost 
marshal  general  fofcthe  purposes  of  said  trial,  and  attendance 
ujjon  said  commission,  and  the  execution  of  its  mandates." 


COURT   MARTIAL,   I— AUTHORITY  AND   FUNCTION.     203 

and  it  may  adjourn  the  trial  for*  a  reasonable  time  to  await 
his  attendance.     XXV,  578. 

9.  Where  the  accused  pleads  guilty,  and  the  specification 
does  not  fully  set  forth  the  particulars  of  the  offence,  the 
court  is  authorized  to  call  ui)on  the  judge  advocate  to  introduce 
testimony  sufficient  to  inform  itself,  as  well  as  the  reviewing 
officer,  as  to  the  extent  of  the  criminality  involved  in  the 
ofi'ence  and  the  measure  of  punishment  proper  to  be  imx^osed. 
XXXIX,  206. 

10.  It  is  the  duty  of  the  court  to  see  that  injustice  is  not 
done  the  accused  by  the  admission  on  the  trial  of  improper 
testimony  i)rejudicing  his  defence,  or  unfairly  tending  to 
aggravate  the  misconduct  charged.  In  the  interests  of  just- 
ice, therefore,  the  court  may  exclude  such  testimony  although 
its  aduiission  may  not  be  objected  to  on  the  part  of  the 
accused.^  On  a  similar  ground  or  for  the  purpose  of  fully 
informiug  itself  of  the  facts,  the  court  may,  in  its  discretion, 
allow  the  introduction,  by  either  side,  of  material  testimony 
after  the  case  has  been  formally  closed.^  Such  a  proceeding, 
however,  must  be  of  course  exceptional,  and  a  party  should 
not  be  permitted  to  offer  testimony'  at  this  stage,  unless  he 
exhibits  good  reason  for  not  having  produced  it  at  the  usual 
and  proper  time.     XII,  401;  XVII,  398. 

11.  In  a  case  where — a  plea  of  guilty  having  been  inter- 
posed— the  prosecution  had  closed,  and  the  accused  had  pro- 
ceeded to  present  to  the  court  a  statement  of  defence,  held 
that  the  court  was  authorized,  in  its  discretion,  to  reopen  the 
case  and  hear  testimony  relative  to  certain  gross  ill-treatment 
to  which  the  accused  in  his  statement  had  represented  that 
he  had  been  subjected,  and  which,  he  claimed,  had  excused 
or  extenuated  his  offence.     XXXI,  35. 

12.  A  court  martial,  after  having  entered  upon  a  trial  which 
has  to  be  suspended  on  account  of  the  absence  of  material 

^Compare  the  recent  case  of  State  v.  O'Connor,  05  Missouri, 
374. 

2  Compare  Eberhardt  v.  State,  47  Ga.  598;  and  see  the 
Trial,  by  court  martial,  of  B.  G.  Harris,  (Ex.  Doc.  Xo.  14, 
Ho.  of  Keps.,  39th  Cong.  1st  sess.,  p.  25,)  where,  on  the  day 
on  which  the  accused  was  to  present  his  final  argument  to 
the  court,  and  which  was  two"  days  after  the  formal  closing 
of  the  case,  the  defence  was  allowed  to  introduce  new  testi- 
mony on  the  merits. 


204     COURT  MARTIAL,   I — AUTHORITY   AND   FUNCTION. 

witnesses,  or  for  other  cause,  is  authorized,  in  its  discretion, 
to  take  up  a  new  case  not  likely  to  involve  an  extended  inves- 
tigation, and  i)roceed  with  it  to  its  termination  before  resum- 
ing the  trial  of  the  first  case.  Ill,  281 ;  IX,  G50  j  XXYI, 
548. 

13.  A  court  martial  has  no  power  to  terminate  its  own 
existence  or  function.  [See  Seventy  Fifth  Article  §  5.] 
Where  therefore  it  has  adjourned  ''  sine  die,^^  (see  Adjourn- 
ment §  4,)  it  may,  without  being  formally  reconvened  in 
orders,  reassemble  and  take  up  and  try  a  case  referred  to  it 
by  the  convening  authority,  through  its  jjresident  or  judge 
advocate,  precisely  as  if  it  had  not  adjourned  at  all.  It  is  its 
duty  indeed  to  hold  itself  in  readiness  to  try  all  cases  so 
referred,  until  formally  dissolved  by  the  convening  officer  or 
his  successor  in  the  command.     XIX,  G28  -,  XLI,  282. 

14.  A  court  martial  is  not  legally  dissolved  till  officially 
informed  of  an  order,  from  competent  authority,  dissolving  it. 
The  proceedings  of  a  court  martial,  had  after  the  date  of  an 
order  dissolving  it  but  before  the  court  has  become  officially 
advised  of  such  order,  will  thus  be  quite  regular  and  valid. 
Where  an  order  dissolving  forthwith  a  court  martial  has  been 
duly  officially  received  by  the  court  and  has  thus  taken  effect, 
an  order  subsequently  received  revoking  this  order  will  be 
entirely  futile.  It  will  not  revive  the  court,  but  the  same,  to 
be  qualified  for  further  action,  must  be  formally  re- convened 
as  a  new  and  distinct  tribunal.    XLIII,  IGO. 

15.  Except  where  it  sustains  a  challenge  under  Art.  8S,  a 
court  martial  is  not  authorized  to  dispense  with  the  attend- 
ance of  a  member.^  XXXVII,  34.  [See  Eighty  Eighth 
Article  §  IG.]  It  cannot  excuse  a  member  to  enable  him  to 
attend  as  a  witness  on  the  trial,  (see  Witness  §  5,)  or  to  act 
as  counsel  for  the  accused.     XXI,  650  -,  XXXV,  488,  490. 

IG.  Where  a  court  martial  excused  its  judge  advocate,  and 
required  its  junior  member  to  act  as  judge  advocate  in  his 
stead,  Jield  that  its  action  was  wholly  unauthorized  and  that 
its  i)roceedings  were  x>i'Oi)erly  disapi)roved.^  It  is  only  the 
convening  authority,  (or  his  successor  in  command,)  who  can 
relieve  or  detail  a  member  or  a  judge  advocate.  XXVIII, 
198. 

^Compare  VII  Opins.  of  Attys.  Gen.  98. 
2  See  G.  C.  M.  O.  G2,  War  Dept.,  1874. 


COURT   3IARTIAL,   I — AUTHORITY   AND  FUNCTION.     205 

17.  vStrictly,  communications  from  tbe  convening  authority 
to  the  court  as  such,  (and  vice  versa,)  should  be  made  to,  (and 
by,)  the  president  as  its  organ  5  communications  relating  to 
the  conduct  of  the  prosecution  to,  (and  by,)  the  judge  advo- 
cate.    XXrX,  33G. 

IS.  There  is  no  law  i^rohibiting  a  court  martial  of  the  United 
States  from  sitting  on  Sunday,  and  the  fact  that  a  sentence 
of  such  a  court  is  adjudged  on  that  day  can  affect  in  no  man- 
ner its  validity  in  law.     XXX  EX,  321,  027. 

19.  The  polling  of  a  court  martial,  in  the  manner  of  a  jury 
or  otherwise,  is  a  proceeding  wholly  unknown  to  military  law. 
So,  where  an  officer,  acting  as  the  counsel  of  a  soldier  on  trial 
by  court  martial,  demanded,  on  the  court  ruling  adversely 
upon  the  admission  of  a  special  plea,  that  it  be  i)olled, — held 
that  his  action  was  wholly  irregular  as  well  as  disrespectful 
to  the  court.^    XXXIY,  454. 

20.  A  court  martial  is  authorized,  in  its  discretion,  to  sit 
with  closed  doors.  Except,  however,  when  temporarily  closed 
for  deliberation,  courts  martial  in  this  country  are  almost 
invariably  open  to  the  public  during  a  trial.     XXIX,  34. 

21.  A  court  martial  is  authorized  to  exclude  from  its  ses- 
sion any  person  who,  it  has  good  reason  to  believe,  will 
endeavor  to  intimidate  or  interrupt  the  witnesses,  or  other- 
wise conduct  himself  in  a  disorderly-  manner.     XXIX,  237. 

22.  Where,  after  the  accused  has  pleaded  guilty ,  or  after 
he  has  pleaded  not  guilty  and  the  evidence  for  the  prosecution 
has  been  i)resented,  he  effects  an  escai)e  from  military  cus- 
tody and  disapi^ears,  he  may  properly  be  held  to  have  waived 
his  right  of  defence,  and  the  court  is  authorized  to  x>roceed 
with  its  finding  and,  in  the  event  of  conviction,  its  sentence. 
XI,  260,  295 ;  XXI,  160.  Where,  in  such  a  case,  the  accused 
leaves  counsel,  the  court  may,  in  its  discretion,  allow  such 
counsel  to  introduce  evidence  and  present  an  argument. 
XIX,  487. 

23.  The  remarking  by  the  court,  in  connection  with  the 
finding  or  sentence,  unfavorably  upon  an  officer  or  soldier, 
(other  than  the  accused,)  whose  conduct  is  exhibited  by  the 
testimony,  or  upon  an  act  or  practice  deemed  proper  to  be 
noted  in  the  interests  of  military  discix)line,  though  now  com- 
parativelj'  unusual,  is  sanctioned  by  the  authorities  as  per- 

'  See  G.  C.  m7o.  37,  War  Dept,  1873. 


206  COURT  MARTIAL,   II — JURISDICTION. 

missible  aDd  regular  iu  a  proper  case.^    XXYIII,  626 ;  XXIX, 
216. 

24.  To  detail  as  a  military  commission  the  same  officers  as 
those  already  constituting  a  court  martial  or  vice  versa,  without 
dissolving  the  court  first  convened,  though  a  proceeding  for 
which  there  are  precedents  both  in  the  Mexican  war  and  the 
recent  war,  is  one  which  should  not  be  resorted  to  where, 
without  material  embarrassment  to  the  service,  it  can  be 
avoided.  And  this  view  is  ai:>plicable,  though  with  less  force, 
to  the  case  of  a  single  officer  proposed  to  be  detailed  upon 
two  distinct  military  courts  at  the  same  time  :  such  a  detail 
should  not  be  made  unless,  on  account  of  the  scarcity  of  offi- 
cers available  for  such  duty,  it  cannot  well  be  avoided.  YII, 
134 ;  XIX,  495. 

See  FIFTY  FOURTH  ARTICLE  $  6. 
SEVENTY  FIFTH  ARTICLE  §  5. 
EIGHTY  FOURTH  ARTICLE  §  2. 
EIGHTY  SIXTH  ARTICLE. 
EIGHTY  EIGHTH  ARTICLE  §  12. 
NINETY  THIRD  ARTICLE  $  2. 
ADJOURNMENT  ^  4. 
CHARGE  §  12. 
COUNSEL,  III  §  4. 
PLEA  ^  1,  2,  3-7. 
PRESIDENT,  I  §  1. 
RECORD  ^  5. 

REDUCTION  TO  THE  RANKS,  II  $  1. 
REPORTER  $  1. 
REVISION  ^  1,  2,  3,  6. 

SENTENCE  AND  PUNISHMENT  $  1,  6,  11 
STATEMENT  $  3. 
WITNESS  ^^  9,  28. 

COURT  MARTIAL,  II— JURISDICTION. 

1.  Courts  martial,  (though,  within  their  scope  and  province, 
authoritative  and  independent  tribunals — see  Court  Mar- 
tial, I  §  1,)  are  bodies  of  exceptional  and  restricted  powers 

'  See  Simmons  §  609-707  ;  Kennedy,  196-7 ;  De  Hart,  182-3 ; 
O'Brien,  268.  In  Jekyll  v.  Moore,  2  Bos.  &  Pul.  341,  the 
expression  of  opinion  by  a  court  martial,  in  acquitting  an 
accused,  that  the  prosecution  had  been  actuated  by  malice, 
was  held  not  to  constitute  a  libel. 


207 

and  jurisdictiou;  tlieir  cognizance  being  confined  to  the  dis- 
tinctive classes  of  offences  recognized  by  the  military  code.^ 
Their  jurisdiction  is  cri  mined,  their  function  being  to  assign, 
(in  proper  cases,)  punishment :  the}'  have  no  authority  to 
adjudge  damages  for  personal  injuries  or  private  wrongs.^ 
XXYII,  454  ;  XXVIII,  328. 

2.  The  jurisdiction  of  a  court  martial  is  co-extensive  with 
the  territory  of  the  United  States.  XI,  234,  351;  ^LXYJ^ 
574.  While  it  Avill  in  general  be  more  for  the  interest  and 
convenience  of  the  service  to  bring  an  accused  officer  or  sol- 
dier to  trial  near  the  locality  of  his  offence,  he  may  with  equal 
legality  be  tried  by  a  conrt  convened  in  any  other  i)art  of  the 
United  States.     XI,  234,  351. 

3.  But  for  an  offence  of  a  military  character  committed 
within  a  foreign  country,  as  in  Canada  or  Mexico,  an  officer 
or  soldier  is  not  liable  to  be  tried  by  a  court  martial  convened 
within  the  United  States,  except  where,  at  the  time  of  its 
commission,  he  was  in  such  country  as  part  of  an  invading 
force  in  time  of  war,  or  otherwise  in  a  military  capacity  under 
military  orders.  XXX,  43 ;  XXXI,  454.  Thus  where  a  sol- 
dier, having  deserted  from  a  i30st  near  the  frontier  of  Canada 
and  crossed  into  that  country,  was  encountered  there  by  the 
captain  of  his  company,  towards  whom  he  conducted  himself 
with  gross  disrespect,  committing  an  offence  which  under 
ordinary  circumstances  would  have  been  a  violation  of  the 

^Ex  parte  Wilkins,  3  Peters,  209;  Barrett  v.  Crane,  16 
Verm.  24G ;  Brooks  v.  Adams,  11  Pick.  441 ;  Brooks  v.  Davis, 
17  Id.  148;  Brooks  v.  Daniels,  22  Id.  408;  Washburn  i\  Phil- 
lips, 2  Met.  29G;  Smith  v.  Shaw,  12  Johns.  257;  Mills  v.  Mar- 
tin, 19  Id.  7 ;  In  matter  of  Wright,  34  How.  Pr.  221 ;  Duilield 
V.  Smith,  3  SerQt.  &  Pvawle,  590;  Bell  v.  Toolev,  12  Iredell, 
605;  State  t\  Stevens,  2  McCord,  32;  Miller  r.'^Seare,  2  W. 
Black.  1141 ;  VI  Opins.  of  Attys.  Gen.  425.  "A  court  mar- 
tial is  a  court  of  limited  and  special  jurisdiction.  It  is  called 
into  existence  by  force  of  express  statute  law,  for  a  special 
purpose,  and  to  i^erform  a  particuhir  duty ;  and  when  the 
object  of  its  creation  is  accomplished,  it  ceases  to  exist. 
*  *  *  If,  in  its  proceedings  or  sentence,  it  transcends 
the  limit  of  its  jurisdiction,  the  members  of  the  court,  and  the 
officer  wlio  executes  its  sentence,  are  trespassers,  and  as  such 
are  answerable  to  the  partv  injured,  in  damages,  in  the 
courts.*'    3  Greenl.  Ev.  §  470.*^ 

-See  3  Greenl.  Ev.  §  471,476;  United  States  v.  Clark,  6 
Otto,  40 ;   Warden   i\  BaUey,  4  Taunt.  78. 


208  COURT   MARTIAL,   II— JimiSDICTION. 

20tli  Article  of  War ;  Jield  that,  ou  liis  being  subsequently 
arrested  within  the  United  States,  a  court  martial,  in  trying 
him  as  a  deserter,  could  not  at  the  same  time  legally  take 
cognizance  of  the  other  offence.  XXVI,  574.  But  where  a 
military  offence  was  committed  by  a  soldier  while  a  part  of 
a  detachment  temporarily  in  Mexico  under  military  orders, 
by  reason  of  having  been  marched  across  the  Eio  Grande  from 
Texas  in  i)ursuit  of  marauding  Indians,  held  that  the  offence 
thus  committed  was  within  the  jurisdiction  of  a  court  mar- 
tial subsequently  convened  in  Texas.^  XXXYIIl,  603. 
Where  the  offence  was  committed  within  the  United  States, 
the  mere  fact  that  the  x^arty  has  been  arrested  on  foreign  soil, 
(as  in  the  case  of  a  deserter  from  our  army  arrested  on  the 
British  side  of  the  Red  River  of  the  Xorth,)  cannot  of  course 
affect  the  authority  of  a  court  martial  to  pass  upon  his  offence 
on  his  being  brought  within  our  territorj^     XXXII,  446. 

4.  In  order  to  become  amenable  to  the  military  jurisdiction, 
an  officer  or  soldier  must  have  been  legally  and  fully  admitted 
into  the  military  service  of  the  United  States.  Thus  held  that 
an  officer  of  State  volunteers  appointed  by  a  governor  of  a  State, 
but  not  yet  mustered  into  the  United  States  service,  was  not 
amenable  to  the  jurisdiction  of  a  court  martial  of  the  United 
States  for  an  offence  committed  while  engaged  in  recruiting 
service  under  the  authority  of  the  governor.  XII,  475.  So  held 
that  the  making  of  fraudulent  representations  in  the  course  of 
the  preliminaries  to  an  enlistment — as  in  the  '' declaration  of 
the  recruit" — and  before  the  enlistment  was  legally  complete 
and  the  soldier  thus  fully  in  the  United  States  service,  did  not 
constitute  an  offence  within  the  cognizance  of  a  court  mar- 
tial.   XXXIX,  511.     [See  Sixty  Second  Article  §  7.] 

5.  An  officer  or  soldier,  (except  as  otherwise  ijrovided  in 
the  Sixtieth  Article,)  ceases  to  be  amenable  to  the  military 
jurisdiction  for  offences  committed  while  in  the  military  ser- 
vice, after  he  has  been  separated  therefrom  by  resignation, 
dismissal,  being  dropped  for  desertion,  muster  out,  discharge, 

^  See  IV  Opins.  of  Attys.  Gen.  55.  Whether  a  disobedience 
of  an  order  to  march,  for  such  a  purpose,  within  tlie  territory 
of  a  foreign  nation  with  which  the  United  States  was  at  peace, 
and  which  had  not  autliorized  an  entering  of  its  domain  by 
armed  forces  of  the  United  States,  would  be  a  disobedience 
of  a  ''lawful"  order,  (see  Twenty  First  Article  §  7,)  aud 
a  mihtary  offence — qucvre. 


209 

&c.,  and  lias  tliiis  become  a  civilian.^  The  old  Englisli  pre- 
cedent of  Sackville's  case,^  (which  appears  mdeed  to  stand 
alone  even  in  England,) has  not  been  followed  in  this  conntry 
or  recognized  in  our  law.  I,  395 ;  II,  49  ;  XII,  470 ;  XIII,  108  ; 
XIX,  G4,  71;  XXI,  37;  XXXI,  34,  48,  571;  XXXIII,  354; 
XXXIV,  422;  XXXV,  049;  XLII,  313. 

A  discharge  of  a  soldier,  when  subject  to  trial  and  pun- 
ishment for  a  military  offence,  is  a  formal  waiver  and  aban- 
donment by  the  United  States  of  jurisdiction  over  him. 
XXXIV,  400.  Nor  does  a  soldier,  after  having  once  been 
discharged, — as  where  he  has  been  dishonorably  discharged 
by  sentence, — remain  liable  to  the  military  jurisdiction,  for 
desertion  or  any  other  military  offence  committed  before  dis- 
charge, by  reason  of  being  still  held  in  military  custody  as  a 
prisoner  in  confinement  under  the  same  sentence ;  for  he  is 
then  held  not  as  a  soldier  but  as  a  civilian  convict.  XXXI, 
34;  XXXIII,  354. 

Xor  can  a  i)erson,  who,  by  reason  of  acceptance  of  resigna- 
tion, dismissal,  discharge,  &c.,  has  become  wholly  detached 
from  the  military  service,  be  made  liable  to  trial  by  court- 
martial,  for  offences  committed  while  in  the  service,  on  the 
ground  that  such  offences  were  not  discovered  till  after  he 
had  left  the  army.     XXXVII,  374. 

The  returning  by  a  dismissed,  &c.  officer  to  the  service 
under  a  new  commission  does  not  revive  a  jurisdiction,  for 
offences  committed  while  he  was  in  the  service,  which  had 
lapsed  upon  his  being  separated  from  it.  V,  314;  XXXV, 
049. 

[It  is  to  be  understood  that  the  general  rule  of  the  non- 
amenability  to  military  trial  of  officers  and  soldiers,  after  dis- 
charge, dismissal,  &c.,  is  subject  to  a  specific  statutory  excep- 
tion, viz.  that  provided  for  in  the  concluding  i^rovision  of  the 
Sixtieth  Article.^] 

^See  this  principle  repeated  and  illustrated  in  G.  C.  M.  O. 
4,  10,  War  Dept.,  1871 ;  G.  O.  90,  Dept.  of  Pennsvlvania, 
1805 ;  do.  43,  Middle  Dept.,  1805 ;  do.  22,  Dept.  of  the  Mis- 
souri, 1800. 

-  Xote  the  counter  dictum  of  Lord  IMansfield,  in  Parker  c, 
Clive,  4  Burrow,  2419,  (dated  in  1779,)  that  officers  of  the 
army,  "  after  resigning  their  commissions,  cease  to  be  objects 
of  military  jurisdiction." 

•^  As  to  the  question  of  the  constitutionality  of  this  p^o^^sion, 
see  Sixtieth  Article,  §  13,  note;  also  note  to  §  8,  infra. 
14  D 


210  COURT   MARTIAL,    II— JURISDICTION. 

6.  A  soldier,  however,  provided  he  has  not  been  in  fact  dis- 
charged, may  be  brought  to  trial  by  court  martial  after  the 
term  of  service  for  which  he  enlisted  has  exijired,  provided,  be- 
fore such  expiration,  i^roceedings  with  a  view  to  trial  have 
been  duly  commenced  against  him  by  arrest  or  service  of  for- 
mal charges.^  By  such  arrest  or  service  the  military  jurisdic- 
tion attaches,  and,  once  attached,  trial  by  court  martial,  and 
punishment, — upon  conviction, — may  legally  ensue,  though 
the  soldier's  term  of  enlistment  may  in  fact  expire  before  the 
trial  be  entered  upon.  In  the  leading  case  on  this  point,  of  a 
seaman  in  the  navy,  {In  re  Walker,  3  American  Jurist,  281,^) 
the  Supreme  Court  of  Massachusetts  held,  (Jauy.  25, 1830,)  as 
follows:  "In  this  case  the  petitioner  was  arrested,  or  i)ut  in 
confinement,  and  charges  were  i^referred  agaiust  him  to  the 
Secretary  of  the  Navy  before  the  expiration  of  the  time  of  his 
enlistment;  and  this  was  clearly-  a  sufficient  commencement  of 
the  prosecution  to  authorize  a  court-martial  to  proceed  to  trial 
and  sentence,  notwithstanding  the  time  of  service  had  expired 
before  the  court-martial  had  been  convened."  And,  to  illus- 
trate the  injurious  consequences  of  an  opposite  ruling,  the 
court  goes  on  to  remark  that  "  if  any  of  the  class  of  offences  not 
punishable  at  common  law,"  and  ''  of  which  no  other  courts, 
excepting  courts-martial,  can  take  cognizance,  should  be  com- 
mitted by  any  seaman  immediately  before  the  exi^iration  of  his 
term  of  service,  he  would  escape  with  impunity.  He  might  be 
guilty  of  the  grossest  insults  to  his  officers ;  of  disobedience  of 
orders  in  the  most  critical  moment  to  the  shij) ;  and  in  the  hour 
of  battle  he  might  refuse  to  fight,  and  there  would  be  no  power 
to  punish  him."  So  held  by  the  Judge  Advocate  General,  in 
a  case  of  a  soldier  of  the  regular  army,  arrested  on  the  day 
before  the  expiration  of  his  term  of  enlistment,  with  a  view 
to  a  trial  for  a  military  offence  by  court  martial, — that  the 
jurisdiction  of  the  court  had  duly  attached,  and  that  his  trial 
might  legally  be  proceeded  with.  XXVI,  512.  And  simi- 
larly held  in  repeated  6ases  of  soldiers  and  officers  of  regular 
and  volunteer  regiments.  Y,  313 ;  VII,  24 ;  XII,  352;  XIV, 
229  ;  XVI,  502 ;  XXVII,  599 ;  XXVII,  193,  348. 

'  See  G.  0.  M.  O.  10,  War  Dept.,  1871. 

^And  see  Judge  Story's  charge  to  the  jury  in  United  States 
V.  Travers,  2  Wheeler  Or.  0.  509 ;  In  the  matter  of  Dew,  25 
L.  R.  540 ;  In  re  Bird,  2  Sawyer,  33. 


II — JURISDICTION.  211 

But  lield  that  a  soldier  could  not  legally  be  brought  to  trial 
for  an  oWQUQd  committed  after  Ms  term  had  expired^  (but  before 
actual  discharge,)  unless,  indeed,  at  the  time  of  commission,  he 
was  voluntarily  remaining  in  the  service  in  the  performance  of 
duty  or  otherwise  consenting  to  be  subject  to  military  author- 
ity. XXX,  91.  And  held  that  a  soldier  could  not  be  made 
amenable  to  trial  for  an  offence  committed  after  the  expiration 
of  his  enlistment,  by  the  mere  fact  tha,t  at  the  time,  he  was 
duly  held  in  arrest  awaiting  trial  for  an  offence  committed  be- 
fore the  expiration  of  his  term  ;  the  jurisdiction  which  had 
attached  for  the  puri:)oses  of  the  trial  and  punishment  of  this 
offence  not  being  capable  of  being  extended  to  include  the 
case  of  an  offence  committed  by  the  party  under  a  distinct 
legal  status.  XXXIY,  98.  Of  course,  if,  after  the  jurisdic- 
tion— by  arrest  or  service  of  charges — has  attached,  the  sol- 
dier is  discharged  from  the  service,  such  jurisdiction  wholly 
ceases.     XXXV,  40G. 

7.  Bj^  the  YIth  Amendment  of  the  Constitution,  civilians 
are  guaranteed  the  right  of  trial  by  jury  ^'  in  all  criminal  pros- 
cutions."  Thus — in  time  of  peace^ — a  court-martial  cannot 
assume  jurisdiction  of  an  offence  committed  by  a  civilian  with- 
out a  violation  of  the  Constitution.  It  is  only  under  the  ex- 
ceptional circumstances  of  a  time  of  war  that  civilians  may,  in 
certain  situations,  become  amenable  to  trial  by  court-martial.^ 
XIX,  41,  475  ;  XXXVIII,  641.  [See  §  8,  note,  infra;  Forty 
Fifth  Article  §  1  and  note  3 ;  Sixty  Third  Article  §  5, 
6,  7  J  Spy  §  1.] 

A  civilian  brought  to  trial  before  a  court-martial,  cannot, 
hj  a  plea  of  guilty  or  other  form  of  legal  assent,  confer  juris- 
diction upon  the  court,  where  no  jurisdiction  exists  in  law.^ 
XXXIX,  500. 

^  See,  in  support  of  this  view — Ex  parte  Milligan,  4  Wallace, 
121-123  ;  Jones  r.  Seward,  40  Barb.  5G3  ;  In  matter  of  Mar- 
tin, 45  Id.  145  •,  Smith  r.  Shaw,  12  Johns.  257,  2G5  ;  In  matter 
of  Stacy,  10  Id.  332;  Mills  v.  Martin,  19  Id.  22;  Johnson  i\ 
Jones,  44  Ills.  142,  155;  Griffin  v.  Wilcox,  21  Ind.  oSiy  ;  In  re 
Kemp,  10  Wis.  359  ;  Ex  parte  McBoberts,  16  Iowa,  605;  An- 
trim's case,  5  Philad.  288 ;  III  Opins.  of  Attvs.  Gen.  690 ;  XIII 
Id.  63. 

2  Compare  People  v.  Campbell,  4  Parker,  386 ;  Shoemaker 
V.  Xesbit,  2  Eawle,  201 ;  Moore  r.  Houston,  3  Sergt.  &  Eawle, 
190 ;  Duliield  v.  Smith,  Id.  599 ;  also  One  Hundred  and 
Third  Article  §  2. 


212  COURT  MARTIAL,   II — JURISDICTION. 

8.  Any  statute  by  which  any  class  of  civilians  is  attempted 
to  be  made  amenable  to  trial  by  court-martial  for  offences 
committed  while  civilians  and  in  time  of  peace,  is  necessarily 
unconstitutional.  XLII,  250.  Thus  held  that  Sec.  1361,  Eev. 
Sts.,^  could  not  properly  be  construed  as  applying  to  prisoners 
at  the  Leavenworth  Military  Prison  w^ho  had  been  sentenced 
to  be  dishonorabl}^  discharged  in  connection  with  their  con- 
finement, and  as  a  i^reliminary  thereto,  (see  Discharge  §  8,) 
and  whose  discharge  had  duly  taken  effect ;  that  to  interpret 
such  provision  as  intended  to  include  and  apply  to  a  class 
of  prisoners  no  longer  in  the  military  service,  but  become 
civilians  by  discharge  therefrom,  while  not  a  construction 
made  necessary  by  the  terms  of  the  statute,^  was  to  attribute 
to  Congress  an  unconstitutional  enactment,  and  therefore  in- 
admissible. So,  in  several  cases  of  prisoners  thus  confined 
at  this  Prison  as  civil  convicts  after  discharge,  and  sought  to 
be  brought  to  trial  for  escape  or  attemj^t  to  escape,  insubor- 
dination, assault,  &c.,  committed  while  so  confined, — Iwld  that 
the  accused  were  not  amenable  to  trial  by  court-martial,  but, 
(unless  their  offences  were  cognizable  by  the  civil  courts,)  were 
legally  punishable  only  by  being  subjected  to  the  discipline 
of  solitary  confinement  prescribed  by  Sec.  1353,  Eev.  Sts.,  for 
convicts  disobeying  orders  or  violating  the  regulations  of  the 
institution.^  XXXVII,  214 ;  XLI,  293,  322 ;  XLII,  132,  155, 
249. 

^This  Section  is  as  follows:"  ^' All  prisoners  under  confine- 
ment in  said  military  prison  undergoing  sentence  of  courts- 
martial  shall  be  liable  to  trial  and  punishment  by  courts-mar- 
tial under  the  rules  and  articles  of  war  for  offences  committed 
during  the  said  confinement." 

2  a  There  can  be  no  liberal  construction  of  the  terms  (of  a 
statute)  which  give  jurisdiction  to  courts-martial."  Opinion 
of  the  Solicitor  General,  (in  regard  to  the  amenability,  to  the 
jurisdiction  of  courts-martial  of  the  cadets  of  the  Naval  Acad- 
emy,) of  July  10,  1877,  (XY  Opins.  — .) 

^  A  different  view,  however,  of  Sec.  1361  was  taken  by  Judge 
Foster,  the  U.  S.  District  Judge  for  the  District  of  Kansas, 
in  the  case  of  Ira  Wildman,  a  prisoner  who,  while  confined 
at  Leavenworth  after  discharge,  had  been  brought  to  trial  by 
court-martial  for  an  escape,  &c.,  and  sentenced  to  an  addi- 
tional term  of  imprisonment.  Upon  an  applicatiou  by  him 
for  release,  by  writ  of  habeas  corpus^  from  this  second  sentence, 
on  the  ground  that  at  the  second  trial  lie  was  not  a  soldier 
but  a  civilian  and  was  not  therefore  subject  to  the  jurisdiction 


COURT   MARTIAL,   II — JURISDICTION^  213 

9.  Sec.  1.361,  Rev.  Sts.  ai)plies  only  to  prisoners  in  confine- 
ment at  the  military  prison  at  Leavenwortli.  So,  in  a  case 
of  a  prisoner,  who,  while  confined,  after  discharge  under  sen- 
tence, at  the  prison  at  Alcatraz  Island,  was  brought  to  trial 
by  court  martial  for  an  escape  and  sentenced,  on  conviction, 
to  an  additional  term  of  imprisonment,  held  that  the  second 
trial — the  prisoner  being  then  a  civilian — was  wholly  with- 

bf  a  court  martial,  the  judge,  (at  Chambers,  July,  1876,)  de- 
nied the  application.  The  view  of  the  situation,  as  taken  by 
him,  is  expressed  not  positively  but  in  an  interrogative  form 
as  follows:  "This  law"  (Sec.  1361)  ''was  in  force  when  the 
sentence"  (imposing  dishonorable  discharge  and  pursuant  to 
which  the  soldier  was  discharged  in  fact)  "was  made;  and  is 
not  the  judgment  of  the  court  discharging  the  soldier  so  quali- 
fied by  the  law  as  to  still  continue  his  relations  to  the  service 
so  far  as  to  hold  the  prisoner  subject  to  military  law  until  his 
term  of  imprisonment  is  fully  completed?"  The  judge  con- 
cludes as  follows  :  "  I  am  not  i)rei)ared  to  declare  that  Con- 
gress, in  making  such  provisions,  exceeded  its  constitutional 
powers  to  make  rules  for  the  government  and  regulation  of 
the  forces.  The  question  is  one  of  great  importance,  involv- 
ing the  validity  of  the  Act  of  Congress,  and  the  personal  lib- 
erty of  the  individual,  as  also  the  discipline  and  management 
of  the  military  inisons,  and  I  hope  this  decision  may  be 
brought  before  some  higher  tribunal  for  further  consideration." 
Unfortunately  this  hox)e  could  not  be  gratified,  Wildman  hav- 
ing taken  the  law  into  his  own  hands  and  effected  a  success- 
ful escape. 

The  ruling  of  Judge  Foster  in  this  case  is  concurred  in 
by  the  Attorney  General  in  an  opinion  of  March  26,  1870, 
(XVI  Opins.  — ,)  in  which  it  is  held  that  a  prisoner  of  the 
class  under  consideration,  though  no  longer  in  the  service,  is 
a  military  prisoner,  and,  for  i>urposes  of  discipline  and  pun- 
ishment, is  still  so  connected  with  the  military  service  that 
his  case  is  to  be  regarded  as  gne  "  arising  in  the  land  forces" 
in  the  sense  of  the  Constitution,  and  therefore  one  in  regard 
to  which  Congress  may  exercise  its  j)ower  of  regulation  and 
government. 

A  decision  of  the  Supreme  Court  on  the  question  involved, 
(and  which  would  also  cover  the  general  question  of  the  au- 
thority of  Congress  to  make  civilians  amenable  to  the  military 
jurisdiction  in  any  case  in  time  of  peace,)  would  be  as  welcome 
to  the  student  of  military  law  as  was  the  decision  of  that 
court  in  Tarble's  case.  [See  Habeas  Corpus  §  3,  note.]  The 
enactments,  other  than  Sec,  1361,  which  at  lu-esent  declare 
such  amenability  are — the  last  clause  of  the  Sixtieth  Article 
of  war,  expressly  authorizing  the  trial  by  court  martial,  (for 
the  particular  offences  si^ecified  in  the  Article,)  of  military 


214  COURT  MARTIAL,   II— JURISDICTION. 

out  legal  authority  and  the  sentence  of  no  efiect/  XXXI,  47  . 
XXXVII,  541.  ' 

10.  So,  where  a  prisoner  confined  at  the  Leavenworth  prison 
after  a  discharge  from  the  service,  was  brought  to  trial  by 
court  martial  for  an  ofi'ence,  (desertion,)  committed  not  dur- 
ing his  confinement  but  more  than  a  year  and  a  half  before 
he  was  received  at  the  prison  under  his  original  sentence, 
held  that  Sec.  1361,  Eev.  Sts.,  furnished  no  authority  for  such 
trial,  and  that  the  court  was  therefore  without  jurisdiction 
and  the  sentence  void.     XLI,  228. 

11.  To  give  a  court  martial  jurisdiction  of  the  person  of  an 
ofQcer  or  soldier  charged  with  a  military  offence,  it  is  not 
necessary  that  he  shall  have  been  subjected  to  any  particular 
form  of  arrest,  or  that  he  shall  have  been  arrested  at  all,  or 
even  ordered  to  attend  the  court.  Here,  as  before  a  civil 
tribunal,  his  voluntary  appearance  and  submission  for  trial  is 
all  that  is  essential.    XXYIII,  27.     [See  Arrest,  I  §  1.] 

12.  It  is  no  objection  to  the  assuming  by  a  court-martial  of 
jurisdiction  of  a  military  ofi'ence  committed  by  an  officer  or 
soldier,  that  he  may  be  amenable  to  trial,  or  may  actually 
have  been  tried  and  convicted,  by  a  criminal  court  of  the 
State,  &c.,  for  a  criminal  ofience  involved  in  his  act.  Thus  a 
soJdier  may  be  tried  for  a  violation  of  Art.  21,  in  striking  or 
doing  other  violence  to  a  superior  officer,  after  having  been 
convicted  by  a  civil  tribunal  for  the  criminal  assault  and  bat- 
tery.    So,  an  officer  or  soldier  may  be  brought  to  trial  under 

persons  after  their  discharge  from  the  military  service,  (see 
Sixtieth  Article  §  13 ;)  and  Sees.  4824  and  4835,  Eev.  Sts., 
making  the  inmates  of  the  ''  Soldiers  Home"  and  ''  National 
Home  for  Disabled  Volunteer  Soldiers,"  respectively,  "  sub- 
ject to  the  rules  and  articles  of  war."  [As  to  the  constitu- 
tionality of  a  further  kindred  provision — that  of  Sec.  1230, 
Ilev.  Sts.,  authorizing  the  trial  of  officers  dismissed  by  order — 
see  first  note  under  Dismissal,  III.]  As  to  all  enactments  of 
this  class,  the  opinion  of  the  Judge  Advocate  GeneraL(in  the 
absence  of  an  adjudication  of  the  question  by  the  Supreme 
Court,)  remains,  with  due  deference  to  the  high  authorities  who 
have  expressed  difi'erent  views,  as  stated  in  the  text.  It  is 
clear  however  that  no  military  officer,  or  court  martial  is 
authorized  to  treat,  in  i)ractice,  a  statute  of  the  United  States 
as  unconstitutional  until  it  has  been  so  pronounced  by  compe- 
tent authority. 

'This  view  is  approved,  and  the  last  sentence  of  the  pris- 
oner declared  inoperative  by  the  Secretary  of  War,  in  G.  C. 
M.  O.  4,  War  Dept.,  1871. 


COURT   MARTIAL,   II— JURISDICTION.  215 

a  cliarge  of  "Conduct  to  the  prejudice  of  good  order  and  mili- 
tary discipline"  for  the  military  offence  (if  any)  involved — see 
Sixty  Second  Article  §  1 — in  a  homicide  or  a  larceny,  of 
which,  as  a  civil  offence,  he  has  been  acquitted  or  convicted 
by  a  criminal  court.^  And  the  reverse  is  also  law,  viz.,  that  the 
civil  court  may  legally  take  cognizance  of  the  criminal  offence 
involved,  without  regard  to  the  fact  that  the  party  has  been 
subjected  to  a  trial  and  conviction  by  court-martial  for  his 
breach  of  military  law  or  discipline.  In  such  instances  the 
act  committed  is  an  offence  against  the  two  jurisdictions  and 
may  legally  subject  the  offender  to  be  tried  and  punished 
under  both.=-'  Y,  140;  XLI,  187;  XLIII,  210.  [See  One  hun- 
dred AND  Second  Article  §  4.] 

13.  It  cannot  affect  the  authority  of  a  court  martial  to  take 
cognizance  of  the  military  offence  involved  in  an  injury  com- 
mitted by  a  soldier  against  an  oflicer,  that,  before  the  trial, 
the  latter  has  resigned  or  been  otherwise  separated  from  the 
army.     XXXII,  623. 

14.  Whether  a  soldier  may  legally  be  held  amenable  to  trial 

^  As  to  the  measure  of  the  imnishment,  upon  the  conviction 
of  the  military  offence,  see  Sentence  and  Punishment  §  11. 

-That  an  officer  may  be  amenable  to  the  civil  and  the  mili- 
tary jurisdiction  at  the  same  time  for  the  same  act,  see  cases 
of  Steiner  and  Howe,  VI  Oi^ins.  of  Attys.  Gen.  413,  50(3.  In 
the  former  case  it  is  held  that  the  '^  conviction  or  acquittal  of 
an  officer  by  the  civil  authorities,  of  the  offence  against  the 
general  law,  does  not  discharge  him  from  responsibility  for 
the  military  offence  involved  in  the  same  facts."  In  the  lat- 
ter case  it  is  observed:  "An  officer  may  be  tried  by  court 
martial  for  the  military  relation  of  an  act,  after  having  been 
tried  by  the  civil  authorities  for  the  civil  relations  of  the  same 
act."  And  see  III  Opins.  749,  and  compare  Moore  v.  Illinois, 
14  Howard,  19-20.  In  a  case  published  in  G.  C.  :\1.  O.  20, 
Hdqrs.  of  Army,  18G9,  an  officer  was  charged  with  and  con- 
victed of  "  Conduct  to  the  prejudice  of  good  order  and  military 
discipline,"  for  the  killing  of  a  soldier,  for  which,  as  ''  man- 
slaughter," he  had  previously  been  acquitted  by  a  civil  court. 
And  see  cases  in  G.  O.  78,  Dept.  of  the  East,  18G9 ;  G.  C.  M. 
O.  50,  Dept.  of  the  Missouri,  1871. 

In  cases  of  double  amenability,  while — in  view  of  the 
subordination  of  the  military  to  the  civil  power — the  civil 
jurisdiction  is  entitled  to  the  preference,  yet,  in  general,  that 
jurisdiction  which  is  first  fulhj  attached  is  ordinarily  properly 
allowed  to  have  the  precedence  in  its  exercise  over  the  other. 
See  JEx  parte  McHoberts,  10  Iowa,  GOG ;  VI  Opins.  of  Attys. 
Gen.  423;  G.  O.  25,  Hdqrs.  of  Army,  1840. 


216  COURT  MARTIAL,   II— JURISDICTION. 

by  court  martial  for  an  offence  committed  by  him  while  on 
furlough^  will  depend  upon  the  nature  of  the  offence  and  the 
circumstances  of  his  situation.  In  general,  indeed,  where  he 
is  thus  absent  at  his  home,  or  at  such  a  distance  from  his  sta- 
tion and  from  troops  that  bis  offences  will  not  directly  preju- 
dice military  discipline,^  he  will  not  render  himself  amenable 
to  the  military  jurisdiction,  unless  indeed  he  commits  a  deser- 
tion.   XXXIX,  340.    [See  Twenty  First  Article  §  10.] 

15.  In  March,  1870,  the  president  of  the  *'  Xational  Home  for 
Disabled  Volunteer  Soldiers,"  (a  civilian,)  convened,  at  the 
Home,  a  court-martial  composed  of  eight  inmates  of  the 
same,  (all  civilians,  but  designated  by  their  former  rank  in 
the  volunteer  service,  as  '^  Surgeon,"  "  Captain,"  "  Sergeant," 
and  "Private,")  for  the  trial,  on  charges  of  desertion  and 
other  offences,  of  another  (civilian)  inmate.  The  court  tried 
the  accused,  convicted  him,  and  sentenced  him  to  a  term  of 
imprisonment.  The  proceedings  and  sentence  were  approved 
by  the  convening  authority,  who  thereui:>on  applied  to  the 
Secretary  of  War  for  an  order  designating  a  military  ijrison 
for  the  confinement  of  the  party  in  execution  of  his  sentence. 
Held,  (upon  a  reference  of  the  case  for  opinion,  by  the  Secre- 
tary of  War,)  that  the  proceedings  were  unprecedented,  un- 
authorized ah  initio  J  and  void  as  a  whole  and  in  detail ;  that 
the  provision  in  the  Act  establishing  the  Home,  that  the  in- 
mates should  be  ''  subject  to  the  rules  and  articles  of  war  in 
the  same  manner  as  if  they  were  in  the  army,"^  conveyed  no 
authority  for  such  a  court  as  that  constituted  and  composed 
in  this  case ;  and  that  the  sentence  adjudged  by  the  same 
could  not  legally  be  executed  in  the  manner  proposed  or  oth- 
erwise.^   XXX,  286. 

^  Compare  Ex  parte  McRoberts,  16  Iowa,  600,  cited  iil  note 
to  Fifty-ninth  Article  §  5. 

2  As  to  the  question  of  the  constitutionality  of  this  provis- 
ion, now  contained  in  Sec.  4835,  Eev.  Sts.,  (and  of  the  simi- 
lar provision  of  Sec.  4824,  relating  to  the  inmates  of  the 
"  Soldiers'  Home,")  see  note  to  §  8,  supra. 

^  It  is  inaccurately  stated  in  the  report  of  the  case  of  Een- 
ner  v.  Bennett,  21  Ohio  St.  434,  (December,  1871,)  that  no  in- 
mate of  the  National  Home  had  ever  been  subjected  to  a  trial 
by  court-martial.  The  instance  referred  to  in  the  text,  how- 
ever, is  the  only  one  known  of  such  a  trial. 


cottrt  of  inquiry — custom  of  the  service.     217 
ske  sixty  second  article  $  1. 

EIGHTY  THIRD  ARTICLE  $  1,  2,  8. 
CADET  ^  8. 
ORDER,  II  ^  4. 
RETIREMENT  $  11. 
SUSPENSION  §  2,  10. 


COUET  OF  INQUIRY. 

See  ONE  HUNDRED  AND  THIRD  ARTICLE  $  10. 

ONE  HUNDRED  AND  FOURTEENTH  ARTICLE  $  6. 
ONE  HUNDRED  AND  FIFTEENTH  ARTICLE. 
ONE  HUNDRED  AND  NINETEENTH  ARTICLE. 
ONE  HUNDRED  AND  TWENTY-FIRST  ARTICLE. 
BOARD  OF  INVESTIGATION  $  1,  2. 
BOARD  OF  SURVEY  $  5. 
REPORTER  $  2. 

STATUTES— CONSTRUCTION  OF  $  12. 
.     WITNESS  $  3,  8. 


COWARDICE. 

See  FORTY  SECOND  ARTICLE  $  1. 
ONE  HUNDREDTH  ARTICLE  $  1. 


CUSTOM  OF  THE  SERVICE. 

See  eighty  THIRD  ARTICLE  $  6. 
NINETY  SECOND  ARTICLE  $  2. 
ONE  HUNDRED  AND  TWELFTH  ARTICLE  $  3. 
ONE  HUNDRED  AND  FIFTEENTH  ARTICLE  $  4 
ABSENCE  WITHOUT  LEAVE  $2. 
DISQUALIFICATION. 
SENTENCE  AND  PUNISHMENT  $  6,  8. 


218  DEATH  SENTENCE — DEFENCE. 


D. 


DEATH  SENTENCE. 

See  ninety-sixth  AETICLE. 

DEFECTS  IN  PEOCEEDINGS,  SENTENCE,  &c. 

While  there  are  numerous  defects,  errors,  or  omissions, 
which  may  well  be  deemed  sufiScient  to  induce,  on  the  part 
of  the  reviewing  authority,  a  disapproval  of  the  proceedings 
or  sentence  of  a  court  martial,  there  are  comparatively  few 
which  should  be  regarded  as  fatal  to  the  legal  vahdity  of  the 
same.  Where  the  court,  as  shown  by  its  authentic  record, 
was  legally  constituted  and  composed  and  had  jurisdiction  of 
the  case,  and  its  sentence  is  a  legal  one,  i.  e.  one  by  which  a 
legal  punishment  is  adjudged  the  accused,  a  defect  in  its  pro- 
ceedings which  does  not  amount  to  a  violation  of,  or  a  failure 
to  comply  witb,  a  statutory  requirement^  should  not  in  general 
be  regarded  as  affecting  the  validity  in  law  of  the  proceed- 
ings or  sentence.     [See  more  fullj^  in  note  to  Eecord  §  3.] 

For  instances  of  errors  and  irregularities  held  not  to  con- 
stitute fatal  defects,  see  Seventy  third  Article  §  3 )  Sev- 
ens Y  fifth  Article  §  8 ;  Eighty  fourth  Article  §  4,  5 ; 
Eighty  eighth  Article  §  14  and  note  5  Ninety  second 
Article  §  3;  Ninety"  third  Article  §  2 ;  Ninety  fourth 
Article  §  2 ;  Ninety  sixth  Article  §  1 ;  One  Hundredth 
Article  §  2  j  Adjourniment  §  2  5  Arrest,  I  §  9 ;  Coun 
SEL,  HI  §  2  ,•  Court  Martial,  I  §  6  j  Interpreter  §  1 ; 
Judge  Advocate  §  18;  Member  of  the  Court  §  3,  5; 
Eecord  §  1,  f ;  Witness  §  15. 

DEFENCE. 

1.  In  order  that  he  may  not  be  embarrassed  in  making  his 
defence,  the  accused  ])arty  on  trial  before  a  court  martial 
should  be  subjected  to  no  restraint  other  than  such  as  may 


DEFENCE.  219 

be  necessary  to  enforce  bis  i^resence  or  prevent  disorderly 
conduct  on  liis  part.  Except,  therefore,  in  an  extreme  case, 
as  where,  the  accused  being  charged  with  an  aggravated  and 
heinous  offence,  there  is  reasonable  ground  to  believe  that  he 
will  attemi^t  to  escape  or  to  commit  acts  of  violence,  the  keep- 
ing or  i)lacing  of  irons  upon  him  while  before  the  court  will 
not  be  justified.^  Even  in  such  a  case  it  will  be  preferable  to 
place  an  adequate  guard  over  him.  XXXI,  102;  XXXII, 
274,  633. 

2.  The  accused  will,  almost  as  a  matter  of  course,  (see 
Counsel,  HE  §  1,)  be  allowed  to  be  assisted  in  his  defence 
before  the  court  by  suitable  counsel,^  and  if  ignorant  of  his 
privilege  in  this  particular,  will  proi^erly  be  advised  of  the 
same.  The  proper  and  usual  practice  is  for  the  court  to  ask 
him  before  the  formal  arraignment  if  he  desires  to  have  coun- 
sel ;  the  question  and  his  answer  being  stated  in  the  record. 
If  he  prefers  to  conduct  his  defence  unaided,  he  should  in 
general  be  left  quite  free  to  present  it  in  his  own  way,  how- 
ever inexpert  may  be  his  course  of  i)rocee(ling,  subject  of 
course  to  reasonable  objections  to  the  admission  of  incompe- 
tent evidence,  &c.,  on  the  part  of  the  judge  advocate.  Y,  214. 

3.  It  is  the  right  of  the  accused,  and  may  be  most  impor- 
tant to  his  defence,  that  he  be  allowed  to  be  present  during 
the  reading,  at  the  outset  of  a  session,  of  the  proceedings  of  a 
previous  day,  as  indeed  during  all  the  material  proceedings  of 
the  trial.  [See  Record  §  1,  d.]  He  cannot  therefore  legally 
be  excluded  from  the  court  room  at  this  stage.  He  may  waive 
however  the  right  to  be  then  i)resent,  and  if  he  voluntarily 
absents  himself  during  this  interval,  the  validity  of  the  pro- 
ceedings is  not  affected.     XXIY,  488,  555. 

4.  The  fact  that  the  accused  is  an  officer  of  high  rank 
should  not  be  regarded  as  constituting  a  ground  for  allowing 
him  any  special  right  or  privilege  in  Jiis  defence  before  a 
court  martial.  [See  Evidence  §  2.]  The  administration  of 
justice  by  a  military,  as  by  a  civil  court,  must  be  strictly  im- 
partial, or  it  ceases  to  be  pure.    All  persons  on  trial  by  the 

1  Compare  G.  C.  M.  O.  62,  Dept.  of  the  Missouri,  1877 ;  do. 
55,  Id.,  1879 ;  and — as  to  the  civil  iiractice — Lee  v.  State,  51 
Miss.  566 ;  People  v..  Harrington,  42  Cal.  165. 

2  See  G.  C.  M.  O.  25,  War  Dept.,  1875 ;  also  Ninety  Third 
Article  §  6. 


220  DEPARTMENT   COIHIMANDER — DESERTION. 

one  species  of  tribunal,  as  by  the  other,  are  deemed  to  be 
equal  before  the  law.    XI,  204. 

See  THIRTEENTH  ARTICLE. 

THIRTY  EIGHTH  ARTICLE  $  7. 

THIRTY  NINTH  ARTICLE. 

SIXTIETH  ARTICLE  v^  9,  10,  15. 

SIXTY  FIFTH  ARTICLE  §  5. 

ABSENCE  WITHOUT  LEAVE  §  2. 

ARREST,  I  ^  3. 

CHARGE  §  5,  20,  26. 

COURT  MARTIAL,  I  $  10. 

DESERTION  ^  5,  6,  7. 

ENLISTMENT  ^  3. 

ORDER,  J  §6',  ID.  II  $  1,  3. 

PROCEEDINGS  AT  LAW  AGAINST  OFFICER,  &c.  $  1,  2,  4, 


DEPARTMENT  COMMANDER. 

See  FOURTH  ARTICLE  ^  3. 
THIRTIETH  ARTICLE  §  3. 
FIFTY  NINTH  ARTICLE  §  2,6. 
SIXTY  SIXTH  ARTICLE. 
SEVENTY  SECOND  ARTICLE  $  4,  5,  6. 
EIGHTY  FIRST  ARTICLE  $  3. 
NINETY  FIRST  ARTICLE  $  3. 
ONE  HUNDRED  AND  FOURTH  ARTICLE  $  4-8. 
ONE  HUNDRED  AND  TWELFTH  ARTICLE  §  2,  3. 
BREVET  RANK  §  4. 
DEVOLUTION  OF  COMMAND. 
DISMISSAL,  II  $  4. 
LOSS  OF  FILES  §  2. 
POST  COMMANDER  $  3. 


DEPOSITION. 

See  NINETY  FIRST  ARTICLE. 
WITNESS  $  9,  10,  11,  30. 


DESERTION. 

1.  Desertion  is  an  unauthorized  absenting  of  himself  from 
the  military  service,  by  an  oflQcer  or  soldier,  with  the  inten- 
tion of  not  returning.  In  other  words,  it  is  the  violation  of 
military  discipline  familiarly  known  as  absence  without  leave, 
(whether  consisting  in  an  original  absenting  without  authority, 


DESERTIO^^  '  221 

or  in  an  overstaj'ing  of  a  defined  leave  of  absence,)  accom- 
panied by  an  animus  remanendij  or  non  revertendi;  this  animus 
constituting  the  gist  of  the  offence.  In  order  to  establish  the 
commission  of  the  specific  offence,  both  these  elements — the 
fact  of  the  unauthorized  voluntary  withdrawal,  and  the  intent 
permanently  to  abandon  the  service — must  be  proved.  The 
intent  may  be  inferred,  not  indeed  from  the  fact  of  absenting 
alone,  but  from  the  circumstances  attending  this  fact,  and 
here  the  duration  of  the  absence  is  especiall3'  material.  Thus 
the  circumstance  that  the  absence  has  been  exceptionally 
protracted  and  quite  unexi)lained  will  in  general  furnish  a 
l)resumption  of  the  existence  of  the  necessary  intent.  An 
unauthorized  absence,  however,  of  a  few  hours,  terminated 
by  a  forcible  apprehension,  may,  under  certain  situations,  be 
sufficient  evidence  of  such  intent  and  thus  i^roof  of  a  deser- 
tion 5  while  an  absence  for  a  considerable  interval,  unattended 
by  circumstances  indicating  a  i)uri)oseto  separate  permanently 
from  the  service,  or  to  dissolve  the  pending  engagement  of 
the  soldier,  may  be  proof  simply  of  the  minor  included  offence. 
In  order  to  determine  whether  or  not  the  officer  or  soldier 
absented  himself  with  the  intent  not  to  return,  i.  e.  whether 
his  offence  was  desertion  or  absence  without  leave,  all  the 
circumstances  connected  with  his  leaving,  absence  and  return, 
(whether  compulsory  or  voluntary,)  must  be  considered  to- 
gether. Each  case  must  be  governed  by  its  own  peculiar 
facts,  and  no  general  rule  on  the  subject  can  be  laid  down. 
YIII,  109;  XXYI,  34G;  XXXIII,  123. 

2.  Where  an  officer  left  his  post  on  a  three  days'  leave  of 
absence  and  did  not  return  to  duty  or  report  himself  at  the 
proper  time,  but  absconded  to  Canada  with  a  large  amount 
of  government  funds,  held,  on  his  being  arrested  some  mouths 
subsequently"  in  the  United  States,  that  he  was  clearly  charge- 
able with  the  offence  of  desertion.^  Hi,  230.  So  where  an 
officer  having  been  guilty  of  sundry  embezzlements  aud  frauds, 
and  become  involved  in  debt,  and  being  on  the  point  of  being- 
placed  in  arrest,  obtained,  by  means  of  wholly  false  repre- 
sentations, a  brief  leave  of  absence  from  his  post  for  the  ex- 
pressed purpose  of  visiting  a  certain  place  named;  and  was 
subsequently  apprehended  at  a  place  quite  other  and  much 
more  distant  than  that  designated,  and  while  rapidly  travel- 

"  ~^See  oTa  332,^^ar  Dept.,  }S63. 


222  *  DESERTION. 

ling  CR  route  for  a  still  more  remote  locality; — lieldj  iu  the 
absence  of  any  evidence  to  rebut  the  presumption  thus  raised, 
that  he  was  properly  chargeable  with  having  absented  him- 
self with  the  animus  of  a  deserter.    XXXVIII,  622. 

3.  The  proof  of  a  desertion  should  include  the  proper  evi- 
dence of  an  enlistment  or  its  equivalent,^  (according  to  the 
terms  of  the  Forty  Sev^enth  Article,)  together  with  evidence 
of  an  unauthorized  absenting  of  himself,  animo  non  revertendij 
by  the  accused.  But  that  a  soldier  has  been  charged  with  a 
desertion  is  no  evidence  that  he  has  committed  the  offence. 
Thus  held  that  the  mere  fact  that  a  soldier,  absent  without 
authority,  luul  been  arrested  and  returned  to  his  regiment  as 
a  deserter,  was  no  proof  w  hatever  of  the  offence  charged.  II, 
520.  So  held  that  a  mere  entry  on  a  morning  report  book, 
descriptive  roll,  or  other  official  statement  or  return,  that  a 
soldier  deserted  on  a  certain  day,  was  not  legal  evidence  of 
a  desertion  by  him,  but  was  evidence  only  that  he  had  been 
charged  with  desertion.^  XXII,  15.  So,  a  rei)ort  from  the 
Adjutant  General's  Office  containing  extracts  from  the  muster- 
rolls  of  a  regiment  on  which  a  soldier  of  the  same  was  noted 
as  having  deserted  on  a  certain  date,  held  incomi^etent  evi- 
dence of  the  fact  of  desertion,  upon  a  trial  of  the  soldier  for 
that  offence.'^  XII,  28.  Similarly  held  that  the  mere  state- 
ment of  a  first  sergeant,  given  as  testimony  on  the  trial  of  a 
soldier  of  his  company  charged  with  desertion,  that  the  accused 
"deserted"  at  a  certain  time  and  j)lace,  was  insufficient  as 
proof  of  the  offence  charged,  being  indeed  but  an  assertion 
of  a  conclusion  of  law.  In  such  cases  it  is  for  the  witness 
simply  to  state  the  facts  and  circumstances,  so  far  as  known 
to  him,  attending  the  act  charged;  it  being  the  province  of 
the  court  alone  to  arrive  at  the  conclusion  that  the  offence 
has  been  committed.     XXXVIII,  040.     To  convict  a  deserter 

^  That  care  should  be  taken  not  to  omit  the  proof  of  an 
enlistment,  (or  its  legal  equivalent,)  in  cases  of  desertion, 
has  been  lepeatedlv  enjoined  in  the  General  Orders.  See, 
for  example,  G.  O.  2,  Dept.  of  the  East,  1803;  do.  52  Id.  1801; 
do.  30,  Dept.  of  Virginia,  1803;  do.  38,  Dept.  of  the  Platte, 
1871;  do.  7,  Dept.  of  ('alifornia,  1872.  And  in  this  connec- 
tion, see  note  to  Enlistment  §  1. 

-  (Compare  G.  0.  M.  O.  '33,  Dept.  of  the  Missouri,  1875. 

^  Comx)are  Hanson  v.  S.  Scituate,  115  Mass.  330. 


DESERTION.  223 

upon  an  accusation  merely,  however  formally  and  officially 
the  same  may  be  made,  would  be  as  unwarranted  in  law^  as 
it  would  be  unjust  in  fact.    XXXVII,  590. 

4.  The  nature  of  the  offence  of  desertion  is  well  illustrated 
in  cases  of  escape.  The  mere  fact  that  a  soldier,  while  await- 
ing trial  or  sentence,  or  while  under  sentence,  (and  not  dis- 
charged from  the  service,)  escapes  from  his  confinement,  is 
not  proof  of  a  desertion  on  his  ijart,  since  he  may  have  had 
in  view  some  minor  object,  such  as  the  procuring  of  liquor, 
&c.^  But  an  escape,  followed  by  a  considerable  abse:  ce, 
esi^ecially  if  the  soldier  is  obliged  to  be  forcibly  apprehended, 
is  strong  x)resumptive  evidence  of  the  existence  of  the  intent 
necessary  to  constitute  the  crime.  So,  though  the  absence 
involved  may  be  comj^aratively  brief,  the  circumstances  ac- 
companying the  escape  or  attending  the  apprehension,  may 
be  such  as  to  justify  an  equally  strong  i)resumption.  An 
escajje,  with  intent  not  only  to  evade  confinement  but  to  quit 
the  service,  while  the  party  is  held  awaiting  proceedings  for 
desertion,  is  of  course  a  second  or  additional  desertion. 

As  to  the  nature  of  the  offence  which  may  be  involved, 
there  is  properly  no  substantial  distinction  between  an  escape 
while  awaiting  trial  or  sentence  and  an  escape  while  in  con- 
finement under  sentence.  An  escaiie  indeed  from  an  impris- 
onment imi^osed  by  sentence  would  probably  be  more  likely 
to  be  characterized  by  an  animus  non  revertendi  than  an  escape 
from  a  merely  preliminary  confinement  in  arrest.  So,  an 
escape  from  confinement  while  awaiting  trial  ujjon  a  grave 
charge,  which  must  entail  upon  conviction  a  severe  i)unish- 
ment,  would  naturally  be  more  generally  so  characterized 
than  an  escape  from  an  arrest  upon  a  charge  of  inferior  con- 
sequence. 

Undoubtedly,  in  the  great  majority  of  cases,  escape  is  deser- 

^  See  a  case  of  this  nature,  (an  escaping  in  order  to  obtain 
liquor,)  in  G.  O.  32,  Dept.  of  the  South,  1873;  and  compare 
the  case  in  do.  87,  Id.,  1872,  in  which  a  conviction  of  deser- 
tion is  disapproved  on  the  ground  that  the  evidence  showed 
"merely  an  escape  from  the  guard  house  without  intention 
to  leave  the  service  or  the  vicinity  of  the  post."  And  see  in 
this  connection  Samuel,  321,  where  to  be  'Hliscovered,"  after 
a  short  absence,  ''in  the  pursuit  of  some  accideutal  temporary 
object,  though  perhaps  otherwise  illicit,"  is  instanced  as  not 
indicating  an  intent,  by  the  offender,  "to  sever  himself  from 
the  service.'' 


224  DESERTION. 

tion ;  the  precedents  however  show  that  it  is  not  necessarily 
so  ^ ;  and,  upon  the  mere  fact  alone  that  a  soldier  has  liber- 
ated himself  from  military  custody,  it  is  not  just  to  convict 
him  of  having  designed  to  dissolve  his  contract  and  perma- 
nently abandon  the  military  service.  XXXI,  282  5  XXXV, 
626;  XXXVII,  291, 597  5  XXXVIII,  43  5  XLI,  119.  Of  course 
an  escape  from  legal  military  custody  is  always  an  offence^  and 
the  soldier  who  has  escaped  may,  (where  his  act  does  not 
amount  to  a  desertion,)  be  brought  to  trial  for  such  offence 
as  "conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline." X,  574 ;  XII,  251.  [See  Sixty  Second  Article  §  6.] 
It  need  hardly  be  added  that  an  escape  from  imprisonment 
under  sentence,  effected  by  a  party  who  has  been  dishonorably 
discharged  under  the  same  sentence,  cannot  constitute  a 
desertion  or  other  offence,  the  party  at  the  time  of  escape 
being  no  longer  in  the  military  service.  XXXV,  626.  [See 
Court  Martial,  II  §  7. J 

5.  Held  to  be  no  defence  to  a  charge  of  desertion  that  the 
accused,  at  the  time  of  the  enlistment  which  he  is  charged 
with  having  abandoned,  was  an  unapprehended  deserter  from 
the  army;  an  enlistment  of  a  deserter  being  not  void  but 
voidable  only.    XXXIV,  499,  623.     [See  Enlistment  §  3.] 

6.  It  is  no  defence  to  a  charge  of  desertion  that  the  soldier 
was  induced  to  abandon  the  service  by  reason  of  ill-treatment, 
want  of  proper  food,  &c. :  such  circumstances  can  only  palli- 
ate, not  excuse,  the  offence  committed.  XXXIV,  411.  So, 
in  a  case  of  a  Swiss,  who,  having  enlisted  in  our  army, 
deserted  after  two  years  of  service,  held  that  it  was  no 
defence,  (though,  under  the  circumstances,  matter  of  extenu- 
ation,) that  his  act  had  been  induced  by  an  intense  nostalgia 
or  maladie  du  pays.  XXVIII,  496.  So,  held,  in  a  case  of  a 
desertion  by  a  German,  that  the  fact  that  he  had  received  a 
notification  from  the  military  authorities  of  the  Xortli  German 
Emi)ireto  report  at  home  for  miUtary  duty  under  the  penalty 
of  being  considered  as  a  deserter  from  the  German  army,  con- 
stituted no  defence  to  a  desertion  committed  by  him  from  our 
service.^    XXXIV,  411. 

7.  It  is  however  a  complete  answer  to  a  charge  of  desertion 

^  See  cases  cited  in  last  note. 

^  As  to  the  principle  of  the  right  of  expatriation,  as  asserted 
in  our  j)ublic  law,  see  Sec.  1999^  Rev.  Sts. 


DESERTION.  225 

before  a  court  martial,  that  the  accused  Las  previously  been 
"  restored  to  duty  without  trial,"  as  sanctioned  by  par.  159, 
Army  Regulations,  provided  he  has  been  so  restored  by  com- 
petent authority,  i.  e.  the  commander  who  would  bave  been 
authorized  to  convene  a  general  court  for  his  trial :  otlier- 
wise,  however,  when  so  restored  by  a  superior  not  dulj'  author- 
ized.    Ill,  253  ;  yi,  418. 

8.  The  forfeiture  of  the  rights  of  citizenship,  and  the  inca- 
pacity to  hold  office  under  the  United  States,  imposed  upon 
deserters  by  the  Act  of  March  3, 1805,  (Sees.  199G,  1998,  Rev. 
Sts.,)  can  be  incurred  only  upon  and  as  incident  to  a  convic- 
tion of  desertion  by  a  general  court  martial,  duly  approved 
by  competent  authority.^  XXXII,  370  j  XXXIII,  221; 
XXXY,  464;  XXXYIII,  434;  XXXIX,  433;  XLII,  30. 
These  disabilities,  though  attaching  to  every  such  conviction, 
may  be  removed  by  an  executive  i)ardon  of  the  offender. 
XXXV,  85.    [See  Pardon  §  2.] 

9.  The  forfeiture  of  pay  and  allowdhces  prescribed  for 
deserters  by  pars.  1357  and  1358  of  the  Army  Regulations, 
(see  Pay  and  Allowances  §  9,  and  note,)  can  be  imposed, 
in  any  case,  only  upon  a  satisfactory  asx^ertainment  of  the 
fact  of  desertion.  The  same  may  indeed  legally  be  enforced 
in  the  absence  of  an  investigation  by  a  military  court,  as  for 
instance  ux)on  the  restoration  to  duty  without  trial,  by  the 
order  of  competent  authority,  under  par.  159  of  the  Army 
Regulations,  of  a  deserter  as  such.  But  in  general,  in  this  case 
equally  as  in  that  of  the  statutory  liability,  (see  §  8,)  the  forfeit- 
ure can  safely  be  applied  only  upon  the  trial  and  conviction  by 
court  martial  of  the  alleged  deserter.  VII,  325.  The  conviction 
must  of  course  be  duly  approved;  if  it  be  disajiproved^  the 
soldier  cannot  legally  be  subjected  to  the  forfeiture,  since  he 
cannot  be  treated  as  a  deserter  in  law.  XXVII,  202  ;  XXXV, 
638 ;  XXXVI,  82.    Xor  can  he  be  subjected  to  the  forfeiture 

^  Such  is  believed  to  have  been  the  uniform  course  of  ruling 
in  the  civil  courts.  See  State  v.  Symonds,  57  IMaine,  148 
Holt  V.  Holt,  59  Id.  404;  Severance  v.  Healy,  50  X.  Hamp 
448 ;  Gotcheus  v.  Matthewson,  01  X.  York,  420,  (and  5  Lan 
sing,  214;  5S  Barb.  152;)  Huber  i;.  Reilly,  53  Pa.  St.  112 
McOafferty  v.  Guyer,  59  Id.  110. 

As  to  the  liability  to  male  f/ood  to  the  United  States  the  time 
lost  by  a  desertion^  also  incident  upon  a  conviction  of  tliis 
oflence — see  Forty  Eighth  Article  §  1-5. 

15  D 


226  DESERTION. 

if  lie  is  acquitted,  though  the  fiu cling  be  disapproved  by  the 
reviewing  authority.  XXXI,  19.  A  removal,  in  Orders  of 
the  War  Department,  of  a  charge  of  desertion  entered  by 
mistake  upon  the  rolls  against  a  soldier,  oi)erates  to  relieve 
him  of  any  and  all  stoppages  which  have  been  charged 
against  his  pay  account  for  forfeitures  authorized  by  the 
Army  Eegulations  in  cases  of  deserters.  XXXIX,  413; 
XLI,  518. 

10.  A  deserter  cannot  legally  be  subjected  to  any  forfeiture 
other  than  those  prescribed  by  statute  or  army  regulation. 
He  incurs  for  example  no  forfeiture  of  his  own  personal  prop- 
erty. So,  where  certain  property  left  by  a  deserter  in  his 
quarters  was  sold  by  the  authorities  of  the  post  with  intent 
to  devote  the  proceeds  to  the  post  fund,  held  that  such  proceeds, 
upon  the  subsequent  arrest  of  the  deserter,  should  be  paid 
over  to  him.  XXXV,  454.  So,  a  soldier,  by  reason  of  hav- 
ing deserted,  does  not  forfeit  bounty  money  which  has  been 
paid  him  ui)on  enlistment  or  subsequently,  or  any  other  money 
found  in  his  possession  u]3on  his  arrest.  And  such  money 
cannot  legally  be  withheld  from  him,  to  be  api3ropriated  to  a 
regimental  or  post  fund  or  any  other  purpose,  but,  being  his 
own  personal  property,  unaffected  by  his  offence,  must  be 
left  in  his  possession.'  XIII,  329  j  XV,  128;  XVI,  168,  595; 
XXV,  400. 

11.  That  desertion  2)er  se  does  not  so  taint  the  record  of  a 
soldier  as  to  disqualify  him  to  receive  a  final  honorable  dis- 
charge, or  to  enjoy  the  rights  to  pay  and  bounty  incident 
upon  such  a  discharge,  is  now  fully  and  finally  settled.  [See 
Bounty  §  5 ;  DiscHARaE  §  6.] 

12.  The  reward  of  thirty  doUars,  made  payable  by  par. 
156,  Army  Regulations,  as  amended  by  G.  O.  325,  War 
Dept.  1803,  is  not  due  merely  on  the  apprehension  of  a  de- 
serter: he  must  also  be  delivered  ''to  an  ofQcer  of  the  army 
at  the  most  convenient  post  or  recruiting  station.^  The  fact 
of  the  offer  of  a  reward  for  the  arrest  of  a  deserter  does  not 

^  The  actual  payment  of  the  compensation  in  such  cases  is 
authorized  by  the  appropriation  Acts,  (see,  for  example,  that 
of  May  4,  1880,)  which,  in  appropriating  for  the  incidental 
expenses  of  the  quartermaster  department,  include  as  an 
item — "  for  the  apprehension,  securing  and  delivering  of  de- 
serters, and  the  expenses  incident  to  tlieir  i)ui'suit." 


DESERTION.  227 

authorize  a  breacli  of  the  peace  or  commission  of  an  illegal 
act  in  making  the  arrest.^     XXVIII,  530. 

13.  The  amount  of  the  reward, — to  cite  from  G.  O.  325  of 
1863, — is  in  fall  ''  for  all  exi)enses  incurred  in  apprehending, 
securing,  and  delivering  a  deserter."  Disbursements  made  by 
a  civilian,  where  no  arrest  is  affected,  are  at  his  own  risk,  and 
cannot  legally  be  .reimbursed  by  the  military  authorities. 
XX,  470. 

14.  The  legal  liability  imposed  upon  the  soldier  by  par.  IGO, 
Army  Eegulations,  to  have  the  amount  of  the  reward  stopped 
against  his  pay,  is  quite  independent  of  the  punishment  which 
may  be  imposed  upon  him  by  sentence  of  court  martial  on 
conviction  of  the  desertion.  Such  stoppage  is  incident  ujion 
the  conviction,'^  and  need  not  be  directed  in  the  sentence : 
courts-martial  indeed  have  sometimes  assumed  to  impose  it, 
like  an  ordinary  forfeiture  of  i)ay,  but  its  insertion  in  the 
sentence  adds  nothing  to  its  legal  effect.    XII,  326. 

15.  Where  a  soldier,  charged  with  desertion,  is  acquitted, 
or  where,  if  convicted,  his  conviction  is  disapproved  by  the 
competent  reviewing  authority,  he  cannot  legally  be  made 
liable  for  the  amount  of  a  reward  paid  or  payable  for  his 
arrest  as  a  deserter,  since  in  such  cases  he  is  not  a  deserter 
in  law.     XXVI,  347  ;  XXX,  47. 

16.  Where  a  soldier  for  whose  apprehension  as  a  supposed 
deserter  the  reward  of  $30  has  been  paid,  is  subsequently 
brought  to  trial  upon  a  charge  of  desertion,  and  is  found 
guilty  not  of  desei*ion  but  only  of  the  lesser  and  distinct 
ofi'ence  of  absence  without  leave,  he  clearly  cannot  legally  be 
held  liable  for  the  reward  by  a  stoppage  of  the  amount  against 
his  pay.  In  such  a  case,  the  instrumentality  resorted  to  by 
the  United  States  for  determining  the  nature  of  his  ofi'ence — 
the  court  martial — having  i^ronouuced  that  it  was  not  deser- 

^  See,  in  this  connection.  Clay  v.  United  States,  Devereux, 
25,  in  which  an  officer,  who,  under  the  orders  of  a  superior, 
had,  without  previouslj^  procuring  proper  authority  to  enter 
and  search  from  a  civil  magistrate,  broken  into  a  dwelliug 
house  for  the  purpose  of  securing  the  arrest  of  certain  desert- 
ers, was  held  to  have  committed  an  unjustifiable  trespass, 
and  his  claim  to  be  reimbursed  by  the  United  States  for  the 
amount  of  a  judgment  recovered  against  him  on  account  of 
his  illegal  act  was  disallowed  by  the  Court  of  Claims. 

2  See  to  a  similar  effect,  the  recent  opinion  of  the  Attorney 
General  referred  to  in  the  next  note. 


228  DESERTION. 

tion,  the  government  is  bound  by  the  result,  and  to  visit  upon 
him  a  penalty  to  which  a  deserter  only  can  be  subject, 
would  be  grossly  arbitrary  and  wholly  unauthorized.  More- 
over such  action  would  be  directly  at  variance  with  the  terms 
of  par.  IGO  of  the  Army  Eegulations  which  fixes  such  lia- 
bility upon  the  soldier  tried,  in  the  event  only  of  his  convic- 
tion of  desertion.^  XXYI,  347,  662  5  XXYII,  255, 306  5  XXXI, 
468^  XXXIY,  533,  590;  XLII,  315,  535;  XLTII,  222. 

17.  Where  a  civil  official,  having  made  an  arrest  of  a  de- 
serter, concealed  him  from  the  military  authorities,  and  after- 
wards permitted  or  connived  at  his  escape,  recommended  that 
the  Attorney  General  be  requested  to  instruct  the  proper  U. 
S.  District  Attorney  to  initiate  proceedings  under  Sec.  5455, 
Eev.  Sts.     XLI,  481. 

18.  Every  desertion  includes  an  absence-with out-leave. 
Upon  a  trial  for  desertion,  the  accused  is  tried  also  for  the 
absence-without-leave  involved  in  the  offence  charged.^  If 
acquitted,  without  reservation,  of  the  desertion,  he  is  acquitted 
also  of  the  lesser  offence.  If  convicted,  as  he  may  be,  (see 
FiNDiNGr  §  8,)  of  the  lesser  offence  only,  under  a  charge  of  the 
greater,  he  is  acquitted  in  law  of  the  latter.    XXXIII,  123. 

See  forty  EIGHTH  ARTICLE. 
FIFTIETH  ARTICLE. 
FIFTY  FIRST  ARTICLE. 

ONE  HUNDRED  AND  THIRD  ARTICLE  $  1,  2,  and  note. 
ARTIFICIAL  LIMBS  $  1. 
CHARGE  §  22.  ^ 

ENLISTMENT  §  5,  6. 
EVIDENCE  ^  12. 
FORFEITURE,  I  $  1,  2. 
PARDON  ^  12,  13. 
PAY  AND  ALLOWANCES  §  19. 
PLEA  §  2,  5. 

PRISONER  OF  WAR  $  8,  11. 
SENTENCE  AND  PUNISHMENT  $  14. 

^  This  conclusion  was  concurred  in  by  the  Attorney  Gen- 
eral in  his  Opinion  of  March  24,  1880,  published  in  G.  O.  21, 
Hdqrs.  of  Army,  1880. 

2  See  XIII  Opins.  of  Attys.  Gen.  460. 


DEVOLUTION  OF  COMMAND— DISBURSING  OFFICER.  229 


DEVOLUTION  OF  COMMAND. 

In  the  absence  of  any  law  or  regulation  making  it  essential 
that  a  command  of  a  department  or  military  division  should 
be  exercised  by  an  officer  specifically  assigned  thereto  by  the 
President,  held  that,  upon  the  general  commanding  the  de- 
partment or  division  being  temporarily  required  to  leave  and 
cease  to  exercise  his  command,  the  same,  in  the  absence  of 
any  assignment  of  a  commander  by  the  President,  would 
regularly,  according  to  the  general  i)rinciple  of  the  devolu- 
tion of  military  command,  devolve  upon  the  senior  colonel, 
(or  commanding  officer  next  in  rank  to  the  department  or 
division  commander,)  serving  in  the  department  or  division 
command,  who  would  properly  exercise  the  command  of  the 
department  or  division  until  the  return  of  the  absent  com- 
mander, or  till  a  new  assignment  was  made  by  the  President. 
XLII,  111. 

DISAPPROVAL  or  PROCEEDINGS,  &c. 

See  approval  OR  DISAPPROVAL  OF  PROCEEDINGS,  &c. 

DISBURSING  OFFICER. 

1.  A  disbursing  officer  of  the  army  who  has  paid  out  pub- 
lic moneys  upon  vouchers  which  i^rove  to  have  been  false  or 
forged,  is  i)ersonally  responsible  to  the  United  States  for  the 
amount  of  the  loss  j  and  it  is  the  usage  of  the  government  to 
hold  such  an  officer  so  responsible,  however  iuuocent  of  crim- 
inality he  may  be ;  the  fact  that  he  has  acted  in  good  faith 
not  affecting  his  legal  liability.  Such  an  officer,  further,  is 
not  entitled  to  call  u])on  the  government  to  prosecute  a  civil 
suit  against  the  i)arty  chargeable  with  the  fraud,  but  he  may 
legally  himself  initiate  such  a  suit  if  he  desires  to  do  so  for 
his  own  indemnity.  Except  i)erhaps  in  some  instances  of 
shght  loss,  where  the  Secretary  of  AVar  may  deem  himself 
authorized  to  make  good  the  amount  to  the  officer  out  of  the 
fund  appropriated  for  the  contingencies  of  the  army,  the  lat- 
ter cannot  look  to  the  War  Department  for  reimbursement. 


230  DISBURSING  OFFICER. 

It  is  of  course  open  to  liim,  however,  to  apply  to  Congress 
for  relief.     XVI,  635 ;  XXVIII,  20,  42 ;  XXXII,  423. 

2.  It  is  in  accordance  with  the  usage  of  the  military  serv- 
ice, as  well  as  the  general  practice  under  existing  laws,  for 
an  officer  of  the  army  charged  with  the  disbursement  of  pub- 
lic funds,  to  i)ursue  in  his  own  name  and  representative 
capacity  the  proper  legal  remedies  when  such  funds  are  ille 
gaily  appropriai^ed  or  withheld  by  third  parties.  This  official 
function  of  the  officer  cannot  properly  be  imposed  upon  the 
Head  of  his  Department.  The  Secretary  of  War  cannot  be 
required  to  institute  the  legal  proceedings,  nor  would  his  doing 
so  make  the  claim  any  more  a  public  claim  of  the  United 
States  than  it  is  as  prosecuted  by  the  disbursing  officer  in  his 
official  cai3acity.  Thus  advised,  in  the  case  of  such  an  officer, 
a  portion  of  whose  i3ublic  funds  were  in  the  possession  of  a 
Bank,  as  an  authorized  public  depositary,  at  a  time  when 
the  same  stopped  payment  and  went  into  insolvency,  that  the 
officer  should  file  and  prove  his  claim  before  the  liegister  in 
Bankruptcy  and  prosecute  the  collection  of  the  same  so  far 
as  necessary  and  practicable;  and  further  that  a  due  and 
reasonable  diligence  on  his  part  in  pursuing  the  legal  meas- 
ures oi3en  to  him  for  realizing  the  amount  for  which  he  was 
officially  responsible  would  furnish  the  strongest  support  to 
any  application,  which  he  might  in  future  prefer,  to  be  dis- 
charged from  liability  for  any  loss  to  the  United  States  result- 
ing from  the  failure  of  the  depositary.    XXXV,  365. 

3.  Congress,  in  appropriating  money  for  the  new  State, 
War  and  Xavy  Department  Building,  has  provided  that  the 
amounts  shall  ''be  expended  under  the  direction  of  the  Secre- 
tary of  War."  While  the  Secretary  would  thus  be  author- 
ized to  commit  the  disbursing  of  the  funds  employed  to  any 
proper  person,  yet  advised,  in  view  of  the  policy  of  the  law 
as  expressed  in  Sec.  1153,  Eev.  Sts.,  that  the  Secretary  would 
properly  designate  as  the  disbursing  agent  the  engineer  offi- 
cer engaged  in  superintending  the  work,  especially  since — as 
provided  in  said  Section — the  duty  of  disbursing  would  thus 
be  performed  without  any  charge  to  the  United  States. 
XIJ,  283. 

See  sixtieth  ARTICLE  §  5,  0,  9,  10,  11. 
SIXTY  SECOND  ARTICLE  ^  7. 
GAMBLING. 
TRANSPORTATION  OF  PUBLIC  FUNDS. 


DISCHARGE.  231 


DISCHARGE. 


I.  Honorable  and  Dishonorable  Discharge  distin- 
guished. 

1.  Three  separate  forms  of  discharge  of  soldiers  are  author- 
ized iu  our  law :  1.  The  ordinary  regular  discharge  at  the  end 
of  the  term  of  enlistment  and  by  reason  of  its  expiration, 
and  which  is  necessarily  an  honorable  discharge :  2.  The  sum- 
mary discharge  authorized,  by  the  Fourth  Article  of  War, 
to  be  given  to  a  soldier  before  his  term  of  enlistment  has  ex- 
pired, by  the  order  of  the  President,  the  Secretary  of  War, 
or  a  department  commander,  and  which,  as  these  officials 
cannot  punish^  and  are  simply  invested  by  the  Article  with  a 
discretion  to  cancel  a  contract  when  the  public  interest  or 
convenience  requires  it,  is  also  an  honorable  discharge  in  law : 
3.  The  discharge  imposed  as  a  punishment  by  general  court 
martial^  (under  the  authority  of  the  same  Article,)  and  known 
as  "dishonorable"  discharge.  XIX,  321;  XXXIY,  358; 
XXXVI,  537;  XXXVII,  230;  XXXVIII,  342;  XLII,311. 
[See  Fourth  Article  §  3.] 

2.  Dishonorable  discharge,  being  punishment,  can  be  au- 
thorized only  by  sentence  of  a  general  court  martial  upon  trial 
and  conviction.  Xo  executive  or  military  official,  (except  in 
executing  such  a  sentence,)  can  give  or  order  a  dishonorable 
discharge,  nor  can  a  soldier  be  subjected  to  such  a  discharge 
by  reason  of  any  proceedings  commenced  or  i^rosecuted 
against  him  but  not  resulting  in  such  a  sentence.  Thus  the 
fact  that  a  soldier  has  been  for  a  long  period  held  in  confine- 
ment under  military  arrest,  or  that  he  is  held  in  confinement 
tinder  a  sentence,  (which  did  not  also  impose  discharge,)  can 
furnish  no  legal  ground  for  giving  him  a  dishonorable  dis- 
charge from  the  service,  (XXVIII,  556;  XXX,  278;)  nor  can 
the  fact  that  he  has  been  arrested  by  the  civil  authorities,  or 
convicted  by  a  civil  court,  subject  him  to  such  a  discharge. 
XXXI,  G23 ;  XXXVIII,  007.  In  all  cases,  indeed,  of  sum- 
mary discharge  given  by  order  under  Art.  4,  the  cause  or 
occasion  of  the  discharge  may  properly  be  stated  in  writing 
in  the  body  of  the  discharge  certificate  or  endorsed  upon  it. 
So,  if  thought  proper,  the  space  usually  reserved  at  the  bot- 
tom of  the  formal  certificate  for  the  statement  of  "character'^ 


232  DISCHARGE. 

may  be  cut  off  or  left  unfilled.  Sucli  statement,  however,  is 
no  part  of  the  discharge,  and,  whether  the  character  given  be 
good  or  bad,  cannot  affect  its  legal  operation,  (XXXI,  557 ;) 
and  whatever  the  circumstances  or  ground  of  the  discharge,  as 
existing,  or  as  set  forth  in  or  ux3on  the  discharge  certificate, 
the  soldier  discharged  can  be  subjected  to  none  of  the  conse- 
quences incident  to  a  dishonorable  discharge  from  the  service: 
in  law  his  discharge  is  an  honorable  one.^  On  the  other  hand, 
a  discharge  adjudged  by  sentence  of  court  martial  being 
necessarily  a  punishment,  cannot  be  other  than  dishonorable : 
a  sentence  '^  to  be  honorably  discharged"  would  be  a  nullity. 
Ill,  426.  Though  an  accused  be  sentenced  simply  "to  be  dis- 
charged'^— the  word  "dishonorably"  not  being  used — the 
effect  of  the  sentence  will  be  to  impose  a  dishonorable  discharge 
equally  as  if  the  full  and  usual  term  had  been  emjiloyed :  a 
court  martial  can  impose  no  discharge  other  than  a  dishonor- 
able one.    XXXI,  583  j  XXXVII,  658. 

II.  Honorable  DiscHARaE. 

3.  Where  an  honorable  discharge  has  once  duly  taken  effect 
by  the  delivery  of  the  formal  certificate,  (see  Fourth  Arti- 
cle §  1,)  it  is  final  and  cannot  be  revoked  unless  obtained  by 
fraud?  But  in  such  a  case  the  revocation  should  be  made 
within  a  reasonable  time :  otherwise  the  government  will  be 
deemed  to  have  waived  the  defect.  XXIX,  45.  A  mere  order 
for  a  discharge  may  of  course  be  recalled  or  suspended  at  any 
time  before  it  is  executed  by  the  delivery  of  the  discharge 
ordered.  XXIX,  508.  Where  an  ofiicer  of  volunteers  had 
been  duly  mustered  out  of  service — a  form  of  honorable  dis- 
charge— and  was  thus  a  civilian,  held  that  a  revocation  in 
orders  of  his  muster  out,  and  a  substitution  therefor  of  a  dis- 
honorable discharge,  would — in  the  absence  of  any  fraud  in 
the  case — be  wholly  unauthorized  and  illegal.  VI,  478  j  XI, 
1975  ^^?  584;  XXV,  541. 

4.  Where  a  soldier,  by  making  an  alteration  in  his  "  descrii)- 
tive  list,"  so  as  to  cause  it  to  appear  that  his  term  of  enlist- 

'  See  XIV  Opinions  of  Attys.  Gen.  583. 

^  See  opinion  of  the  Attorney  General  of  May  —  1870,  (XVI 
Opins.  — ,)  in  which  it  was  held  that  an  honorable  discharge 
obtained  by  gross  falsehood  and  fraud  was  revocable  by  the 
Secretary  of  War. 


DISCHARGE.  233 

ment,  wliich  was  in  fact  five  years,  was  three  years  only, 
indnced  the  regimental  commander  to  give  him  an  honorable 
discharge  at  the  end  of  three  years'  service ;  Jield,  upon  the 
fraud  being  presently  discovered,  that  the  discharge  might 
legally  be  revoked  and  the  soldier  be  brought  to  trial  by 
court  martial  under  the  99tli  (now  G2d)  Article  of  War.  XXI, 
390.  But  where,  by  competent  authority,  according  to  the 
present  4th  Article,  an  honorable  discharge  was  given  to  a 
soldier  who  was  at  the  time  in  arrest  under  charges,  held 
that  such  discharge — no  fraud  being  imputable  to  the  sol- 
dier— was  final,  and  could  not  legally  be  revoked.  XXIII, 
483. 

5.  An  honorable  discharge  once  duly  made  and  delivered 
to  a  soldier  is  final  as  to  his  rights  to  pay,  allowances  or 
bounty  due  at  the  date  of  its  taking  efl'ect.  He  cannot  there- 
after be  subjected  to  any  of  the  consequences  of  a  dishonor- 
able discharge.  XXVIII,  540.  Thus,  where  a  soldier  was 
arrested,  tried,  and  sentenced  for  mutiny,  but  before  action 
could  be  taken  upon  his  sentence,  the  record  of  his  trial  was, 
with  other  proj^erty,  seized  and  destroyed  by  the  enemy ;  and 
the  soldier  having  meanwhile  been  held  in  confinement  for  a 
long  period,  was  subsequently  honorably  discharged; — held 
that  he  was  entitled  to  pay,  alloAvances  and  bounty,  precisely 
as  if  none  of  these  proceedings  had  been  had.    XXII,  G24. 

6.  The  fact  that  a  soldier  has  been  a  deserter  does  not  affix 
an  irreparable  taint  upon  his  status  or  service  when  returned 
from  desertion,  or  preclude  his  receiving  an  honorable  dis- 
charge, if  either  he  be  restored  to  duty  without  trial,  or  having 
been  tried  and  sentenced,  he  yet,  by  reason  of  his  imi^rison- 
ment  being  fully  executed  or  being  remitted  before  the  end 
of  his  term,  is  returned  to  duty  and  is  in  the  i:)erformaiice  of 
faithful  service  when  his  term  is  completed.  A  discharge  in 
the  usual  form  then  given  to  him  is  a  formal  final  judgment 
I)assed  by  the  government  ui)on  his  entire  military  record 
and  an  authoritative  declaration  by  it  that  he  leaves  the  mili- 
tary service  in  a  status  of  honor.  Thus  honorably  discharged 
he  cannot,  by  reason  of  his  having  formerly  deserted,  be 
deprived  of  any  rights  to  i^ay,  allowances  or  bounty  usually 
incident  ui)on  honorable  discharge.^    XXVI,  484. 

^  This  opinion  is  quoted  and  adopted  by  the  U.  S.  Sujjreme 
Court  in  United  States  v.  Kelly,  15  Wallace,  36.  See  note  to 
Bounty  §  5. 


234  DISCHARGE. 

7.  Where  a  soldier  undergoing  a  sentence  of  confinement — 
Ms  term  of  enlistment  not  being  yet  expired — is  summarily 
discharged  from  the  service  by  one  of  the  officials  designated 
in  the  Fourth  Article  of  war,  such  a  discharge^  being  an  hon- 
orable one  in  law,  i.  e.  not  a  i)unishment,  (see  §  1,  supra,) 
operates  as  a  remission  of  the  unexpired  portion  of  the  con- 
finement. XXXI,  614;  XXXII,  180.  [See  IMPRISONMENT 
§14.] 

8.  A  soldier  honorably  discharged  in  the  usual  form  at  the 
end  of  his  term,  is  no  longer  subject  to  military  discipline  or 
control.^  Having  become  a  civilian,  he  is  entitled  to  be 
restored  at  once,  or  as  soon  as  the  exigencies  of  the  service 
will  permit,  to  the  rights  and  status  of  a  citizen.  XXIX, 
599.    [See  Fourth  Article  §  1.] 

III.  Dishonorable  Discharge. 

9.  Courts  martial,  in  imposing  a  considerable  term  of  con- 
finement, now  almost  invariably  add  the  penalty  of  dishonor- 
able discharge.  In  general,  this  penalty  is  directed  by  the 
court  to  ha  first  executed, — as  by  the  form,  '  to  be  dishonor- 
ably discharged  and  then  confined,'  &c.  Where  there  is  no 
express  indication  in  the  sentence  as  to  which  i)unishment  is 
to  be  first  enforced,  the  one  named  first  in  order  is  regarded 
as  that  intended  to  be  first  executed,  and  is  so  executed  in 
practice.    XLI,  570. 

10.  Where  a  court  martial,  in  imposing  dishonorable  dis- 
charge in  connection  with  confinement,  directs  that  the  dis- 
charge be  first  executed  ;  or  where  it  is  reasonably  to  be  in- 
ferred from  the  terms  of  the  sentence  that  it  was  the  intention 
of  the  court  that  the  punishments  should  be  executed  in  this 
order;  the  reviewing  officer,  in  approving  the  sentence,  is  not 
empowered  to  command  that  the  execution  of  the  discharge 

^  Much  less  is  he  subject  to  he  2>u7iished.  In  the  late  case 
of  White  V.  McDonough,  3  Sawyer,  311,  where  a  soldier, 
whose  term  of  enlistment  exi)ired  while  he  was  on  a  transport 
with  a  detachment,  was  formally  discharged,  and  subse- 
quently, on  account  of  an  alleged  breach  of  discipline,  was 
ordered  by  his  commanding  officer  to  work  in  the  coal  hole, — 
the  court  say :  "  The  conduct  of  the  officer  in  command  was 
arbitrary  and  unjustifiable  either  by  law  or  military  necessity." 


DISCHARGE.  235 

he2^ostponed  to  the  end  of  the  term  of  confinement.^  XXXII, 
300,  529;  XXXIV,  32,  580;  XXXVII,  22.  On  the  other 
hand,  if  the  sentence  clearly  imposes  the  dishonorable  dis- 
charge of  the  soldier  at  the  end  oj  the  term  of  confinement, 
the  reviewing  ofiicer  is  not  authorized  to  direct  that  he  be 
discharged  forthwith.     XXVII,  450. 

11.  Where  a  court  martial  sentenced  a  soldier,  in  connec- 
tion with  confinement,  to  be  dishonorably  discharged  at  such 
date  as  might  be  fixed  by  the  reviewing  ofiicer,  advised  that 
such  a  sentence  was  exce^jtional  and  irregular  as  devolving 
upon  the  reviewing  officer  a  duty  pertaining  to  the  court,  and 
that  the  court  would  properly  be  reassembled  for  the  revisi  on 
of  the  same.2    XXXIII,  401. 

12.  A  sentence — ''  to  be  imprisoned  for  fifteen  years  and 
then  dishonorably  discharged,"  held^  (in  view  of  the  fact  that 
enlistments  in  our  army  are  for  five  years  only,)  to  be — so  far 
as  related  to  the  discharge — irregular  and  unauthorized.  A 
sentence  of  court  martial  cannot  operate  to  retain  a  soldier 
in  the  United  States'  service  beyond  his  legal  term  of  enlist- 
ment. And  advised  that  the  court  be  reassembled  for  the 
revision  of  this  sentence,  and  that  it  be  suggested  to  it  to 
impose  the  discharge  in  advance  of  the  imprisonment,  in 
accordance  with  the  aj)i)roved  precedents.    XXXVI,  53G. 

13.  A  sentence  of  dishonorable  discharge,  (even  when 
ignominious,  as  when  accomx^anied  by  drumming  out,)  entails 
'per  se  no  disability  to  re-enlist  in  the  army ;  nor  does  it  dis- 
qualify for  civil  employment  under  the  United  States.  VIII, 
91 ;  XXVJII,  250  ;  XXXI,  296 ;  XXXIV,  (j2'd. 

14.  Vv^here  a  soldier  has  been  legally  sentenced  to  be  dis- 
honorably discharged,  and  such  sentence  has  been  duly 
executed^  it  is  beyond  the  power  of  the  Executive,  whatever 
the  merits  of  the  case,  to  substitute  an  honorable  in  lieu  of 
the  dishonorable  discharge.  The  latter  having  gone  into 
effect  cannot  be  undone ;  moreover  the  soldier,  having  been 
thereby  whollj^  detached  from  the  military  service  and  made 
a  civilian,  cannot  again  be  discharged  from  the  service  until 

^  See  an  opinion  of  the  Judge  Advocate  General  on  this 
subject  published  and  approved  bv  the  Secretary  of  War  in 
G.  b.  71,  War  Dept.  1875. 

2  See  opinion  to  this  effect,  published  as  approved  bv  the 
Secretary  of  War  in  G.  O.  90,  War  Dept.,  1872. 


236  DISMISSAL,  I — BY   SENTENCE. 

lie  lias  been   again  enlisted  into  it.    XXXYII,  390.  510  j 
XXXVIII,  236,  605  ,•  XLI,  405. 

As  to  Discharge,  in  general,  as  affecting  the  jurisdiction  of 
courts-martial,  see  Court  Martial,  II  §  5 ;  also  Forty 
EIGHTH  Article  §  6 ;  Sixtieth  Article  §  16.  And  see, 
further,  as  to  the  authority,  effect,  &c.,  of  Discharge — Forty 
eighth  Article  §  4,  5 ;  Fiftieth  Article  ;  Desertion  § 
4  5  Enlistment  §  2—6 ;  Habeas  Corpus  §  3,  6. 


DISMISSAL,  I— BY  SENTENCE. 

1.  Courts  martial  are  empowered  {and  required)  to  adjudge 
dismissal  upon  ofi&cers  of  the  army  by  the  3d,  6th,  8th,  13th, 
14th,  15th,  18th,  26th,  27th,  28th,  38th,  50th,  54th,  59th,  61st 
and  65th  Articles  of  War,  upon  conviction  of  the  specific 
offences  therein  described.  In  Arts.  8  and  50  the  punish- 
ment of  dismissal  is  referred  to  as  'cashiering^ — a  term  which 
has  almost  passed  out  of  use  in  our  service,  and  when  em- 
ployed means  no  more  than  dismissal.  XXXIV,  563.  [See 
Cashiering.] 

2.  In  confirming  a  sentence  of  dismissal,  the  reviewing 
authority  may  commute  it,  (see  One  Hundred  and  Twelfth 
Article  §  5,)  to  a  lighter  punishment  appropriate  to  an  offi- 
cer. But  he  cannot  commute  it  to  honorable  discharge,  that 
not  being  a  punishment.     XXXI,  583. 

3.  A  legal  sentence  of  dismissal  of  an  officer  when  finally 
confirmed,  by  the  competent  authority,  (according  to  the  106th 
or  lODth  Article  of  War,)  takes  effect  upon  the  officer  on  the 
day  on  which  the  confirmation  is  officially  communicated  to 
him,  either  by  the  jiromulgation  of  the  order  of  confirmation 
at  his  station  or  other  form  of  official  notice.  [See  Order, 
I  §  2.]  Thus  the  date  of  the  actual  confirmation  is  not  neces- 
sarily— is  not  i)robably  in  the  majority  of  cases — the  date  on 
which  the  dismissal  goes  into  effect.  The  declaration  is  indeed 
sometimes  added  in  the  order  of  confirmation,  that  the  partj' 
'ceases  thereuiion  to  be  an  officer  of  the  army;'  but  this  dec- 
laration is  immaterial  and  surplusage.  It  not  unlrequently 
happens — especially  in  time  of  war,  and  particularly  when 
the  officer  has,  since  his  trial,  been  taken  prisoner  by  the 
enemy — that  a  considerable  i)eriod  may  elapse  before  the 
officer  is  officially  informed  of  the  confirmation  of  the  sentence 


DISMISSAL,  I— BY   SENTENCE.  237 

and  tlius  becomes,  in  law  and  fact,  dismissed  from  the  service. 
XXXVI,  110;  XXXYIII,  341. 

4.  A  sentence  of  dismissal  cannot  legally  be  confirmed  so  as 
to  take  effect  as  of  a  date  prior  to  that  of  the  formal  confirma- 
tion. Thus  where  such  a  sentence  was  adjudged  by  a  court 
martial  on  April  27,  18G3,  but  owing  to  the  exigencies  of  the 
service  was  not  acted  upon  till  after  several  months  by  the 
reviewing  authority,  who  then  formally  confirmed  the  sentence, 
adding  in  the  order  that  the  officer — "ceases  to  be  an  officer 
of  the  army  from  April  27,  18G3,"  Jield  that  this  part  of  the 
order  was  unauthorized  and  inoperative.     XXX,  4S0. 

5.  When  a  legal  sentence  of  dismissal  has  been  duly  con- 
firmed and  executed,  the  power  over  the  case  of  the  reviewing 
officer,  (whether  the  President,  or  the  commanding  general 
in  time  of  war — see  Eeviewing  Officer,)  is  exhausted.  The 
reviewing  authority,  as  such,  is.  functus  officio.  He  cannot 
recall,  revoke,  rescind  or  modify  the  official  act  of  confirma- 
tion, or  the  order  which  is  the  evidence  of  it.  So — the  sen- 
tence being  executed  and  the  dismissal  being  an  accomplished 
fact — the  case  is  beyond  the  reach  of  the  imrdoning  ])oicer: 
by  no  exercise  of  that  power  can  the  sentence  be  removed  or 
remitted,  or  the  office  lost  be  restored.^  [See  Pardon  §  4.] 
Thus,  so  far  as  the  executive  power  is  concerned,  the  dis- 
missal is  final  and  irreversible.  And  the  law  has  provided 
no  court  of  appeal  or  other  revisory  authority,  (see  Appeal,) 
by  which  the  same  may  be  reopened  or  set  aside :  the  only 
remedy  is  by  a  new  appointment.^     [See  §  6,  infra.] 

Of  course  if  the  sentence  was  not  legal — if  the  court,  for  ex- 
ami)le,  was  illegally  constituted  or  comj^osed,  or  was  without 
jurisdiction,  or  its  proceedings  were  invalidated  as  by  some 
such  fatal  defect  as  that  less  than  five  members  took  part  in 
the  judgment — there  has  of  course  been  no  dismissal  in  law, 
and  this  fact  may  at  any  time  be  declared  in  Orders.  And 
so,  where  the  sentence,  though  legal,  has  not  been  approved 
or  confirmed  by  the  competent  authority.  But  where  the 
sentence  is  strictly  legal  and  has  been  legally  confirmed  and 
executed,  the  mere  fact  either  that  the  proceedings  of  the 
court  were  irregular,  or  that  the  rights  of  the  accused  were 

^  Ex  parte  Garland^  4  Wallace,  381 ;  XII  Opins.  of  Attys. 
Gen.  548. 

^'See  IV  Opins.  of  Attys.  Gen.  274-6,  30G;  VI  Id.  369,  514  j 
VII  Id.  995  XII  Id.  5485  XIV  Id.  449. 


238  DISMISSAL,  I — BY   SENTENCE. 

prejudiced  iu  tlie  admission  or  rejection  of  evidence,  or  that 
from  this  cause  or  because  the  members  of  the  court  were 
biased  or  otherwise,  the  finding  was  unjust  or  the  sentence 
too  severe — can  add  nothing  whatever  to  the  power  of  the 
Executive  or  of  Congress  to  nullify  or  modify  the  dismissal 
as  such.'  XX,  3025  XXVI,  462;  XXVIII,  457;  XXIX,  555,. 
575;  XXX,  318,  323,  420;  XXXIV,  634;  XXXVI,  274^330-' 
1,  XXXVIII,  243,  492;  XXXIX,  238,  242,  248. 

6.  Upon  the  legal  execution  of  a  sentence  of  dismissal,  the 
officer  is  wholly  separated  from  the  military  service  and  be- 
comes as  completely  a  civilian  as  if  he  had  never  been  in  the 
army.  As  his  dismissal  is  irreversible,  he  can  be  restored  to 
the  service  only  by  a  new  appointment  by  the  President  un- 
der the  Constitution.  ^  This  is  the  law  independently  of  ex- 
press legislation.  In  July,  1868,  however,  Congress  enacted 
a  statute  described  in  its  title  as  "  declaratory  of  the  law"  on 
the  subject,  which,  as  now  incorporated  in  Sec.  1228,  Eev.  Sts., 
provides  that — "Xo  officer  of  the  Army  who  has  been  or 
may  be  dismissed  from  the  service  by  the  sentence  of  a  gen- 
eral court  martial,  formally  api)roved  by  the  proper  reviewing 
authority,  shall  ever  be  restored  to  the  military  service  except 
by  a  re-appointment  confirmed  by  the  Senate."  Thus,  upon 
princix)le  and  at  law,  a  new  appointment  is  the  only  mode  by 
which  a  dismissed  officer  can  be  rehabilitated.  He  cannot  be 
honorably  discharged,  (as  dismissed  officers  have  uot  unfre- 
quently  asked  to  be,)  or  placed  on  the  retired  list  or  permitted 
to  resign,  in  lieu  of  standing  dismissed,  because  it  is  oi\\j  a  com- 
missioned officer  of  the  army  who  can  be  thus  privileged,  and, 
being  a  civilian,  he  would  necessarily,  in  order  to  be  enabled 
to  be  discharged,  or  to  resign,  &c.,  from  the  army,  lisive  first 
to  he  returned  to  it  hy  an  appointment.  XXIX,  108 ;  XXX, 
318,  323;  XXXI,  504;  XXXVI,  216,  330;  XXXVII,  421, 
492;  XXXIX,  248;  XLI,  675. 

7.  A  sentence  of  dismissal  does  not  attach  any  legal  dlsaMlity 
to  the  person  dismissed.  He  is  not — as  is  indeed  indicated  by 
Sec.  1228,  Eev.  Sts.,  above  cited — disqualified  to  be  newly  ap- 
pointed to  the  army,  (XXI,  215;  XXXVI,  330;)  nor  is  he  dis- 


'  See  IV  Opins.  of  Attys.  Gen.  275. 

2  See  IV  Opins.  of  Attys.  Gen.  318;  XIV  Id.  449,  502;  also 
Eeport  '^{3^6  of  Judiciarv  Committee  of  Senate,  of  March  3, 
1879,  45th  Cong.,  3d  Ses\ 


DISMISSAL,  II — BY   THE   ORDER   OF   THE   PRESIDENT.    239 

qualified  to  be  enlisted  as  a  soldier,  (YII,  253,)  or  to  hold  civil 
office  under  the  United  States.  VIII,  601 5  XXII,  517; 
XXXI,  486. 

8.  In  view  of  the  positive  provision  of  the  Act  of  July  16, 
1862,  now  incorporated  in  Sec.  1441,  liev.  Sts.,  that  "  no  offi- 
cer of  the  navy  who  has  been  dismissed  by  the  sentence  of  a 
court  martial  *  *  *  shall  ever  again  become  an  officer  of 
the  navy,"  heldjin  the  case  of  an  assistant  engineer  of  the  navy, 
thus  dismissed,  and  whose  sentence  had  been  approved  by 
the  President,  that  an  order  assuming  to  '' reinstate"  him,  by 
means  of  the  "revocation"  of  such  api:>roval,  would  be  in  con- 
travention of  the  statute  and  beyond  the  power  of  the  Exe- 
tive.    Y,  481. 

DISMISSAL,  II— BY  THE  ORDER  OF  THE  PRESIDENT. 

1.  Dismissal  by  executive  order  is  quite  distinct  from  dis- 
missal by  sentence.  The  latter  is  a  punishment:  the  former 
is  removal  from  office.  ^  The  power  to  dismiss,  which,  as  being 
an  incident  to  the  power  to  appoint  public  officers,  had  been 
regarded  since  1789  as  vested  in  the  President  by  the  Consti- 
tution, ^  was,  for  the  first  time  in  1866,  (by  the  Act  of  July  13th 
of  that  year,  re-enacted  in  the  second  clause  of  the  present 
S9th  Article  of  War  and  in  Sec.  1229,  Eev.  Sts.,)  expressly  di- 
vested by  Congress  in  so  far  as  respects  its  exercise  in  time  of 
peace.  ^  By  the  statute  law  it  is  now  authorized  only  in  time 
of  war.  During  the  late  war  it  was  exercised  in  a  great  num- 
ber of  cases,  sometimes  for  the  i)urpose  of  summarily  ridding 
the  service  of  unworthy  officers,  sometimes  in  the  form  of  a 
discharge  or  muster-out  of  officers,  whose  services  were  sim- 
^\j  no  longer  required.  The  distinction  between  this  species 
of  dismissal  and  dismissal  by  sentence  is  illustrated  by  the 

1  See  VII  Opins.  of  Attys.  Gen.  251. 

^  See,  as  among  the  principal  autliorities  on  this  subject, — 
Commonwealth  v.  Bussier,  5  Sergt.  &  Eawle,  461 ;  Ex  parte 
Hennen,  13  Peters,  258,  259 ;  United  States  r.  Guthrie,  17, 
Howard,  307  5  IV  Opins.  of  Attvs.  Gen.  1,  609-613;  VI  Id.  6-Q ; 
VII  Id.,  251;  VIII  Id.,  230-232;  XII  Id.,  424-426 ;  Sergeant- 
Const.  Law,  373;  2  Story's  Corns.  §  1537,  note;  1  Kent's  Coms. 
310 ;  2  Marshall's  Washington,  162. 

^  See  late  opinion  of  Attorney  General  of  April  30,  1879, 
(XVI  Opms.  — .) 


240  DISMISSAL,  II — BY   THE   ORDER   OF   THE  PRESIDENT. 

fact  that  the  former  has,  with  the  sanction  of  legal  authority, 
been  repeatedly  ordered  in  cases  where  a  court  martial  has 
previously  acquitted  the  officer  of  the  very  offences  on  account 
of  which  the  summary  action  has  been  resorted  to.^  XXIII, 
265-  XXYI,  5;  XXXI,  557  j  XXIX,  251;  XLII,  470. 

2.  The  Executive,  in  summarily  dismissing  an  officer,  can- 
not at  the  same  time  deprive  him  of  pay  due.  Xor  can  the 
right  of  an  officer  to  his  pay  for  any  period  x^rior  to  a  sum- 
mary dismissal  ordered  in  his  case,  be  divested  by  a  dating 
back  of  the  order  of  dismissal.  Such  an  order  cannot  be 
made  to  relate  back  so  as  to  affect  the  status  or  rights  of  the 
officer  as  they  existed  before  the  date  of  the  taking  effect  of 
the  dismissal.  YI,  379,  405;  X,  1,  4 ;  XVII,  670;  XXXI, 
125;  XXXY,  112;  XLII,  73,  470.     [See  §  5  infra.] 

3.  A  summary  dismissal  ''by  order  of  the  Secretary  of 
War,"  is  in  law  the  act  of  the  President.^  Y,  319 ,  XLI,  611. 
[See  Secretary  of  War.] 

4.  A  department  or  army  commander  can  have  of  course 
no  authority  to  summarily  dismiss  or  discharge  an  officer 
from  the  military  service.  XI,  405  ;  XYI,  553  ;  XLI,  84 ; 
XLII,  263.  But  where,  in  a  case  of  a  regular  officer,  this 
authority  was  in  fact  exercised,  and  the  President,  treating 
his  office  as  vacant,  proceeded  to  fill  the  vacancy  by  a  new 
appointment,  held  that  he  had  made  the  dismissal  his  own 
act  and  legalized  the  same.^  XLI,  84.  So  where,  (in  1863,) 
an  officer  of  volunteers  was  dismissed  by  the  order  of  an 
army  commander,  which  was  never  ratified  in  terms  by  the 
President,  but  a  successor,  appointed  to  the  vacancy  by  the 
governor  of  the  State,  was  accepted  and  mustered  in  by  the 
United  States;  held,  (in  1880,)  that  the  dismissal  was  to  be 
regarded  as  having  been  substantially  ratified  and  legalized. 
XLIY,  82. 

5.  A  summary  dismissal  of  an  officer  does  not  properly 
take  effect  until  the  order  of  dismissal  or  an  official  copy  of 
the  same  is  delivered  to  him,  or  he  is  otherwise  officially  noti- 
fied of  the  fact  of  the  dismissal.     [See  Order  §  2.] 

'  See  XII  Opins.  of  Attys.  Gen.  427. 

'  See  XII  Opins.  of  Attys.  Gen.  421 ;  McElrath  v.  United 
States,  12  Ct.  CI.  li.  202 ;  also  Secretary  of  War. 

^  See  opinion  of  Attorney  General  of  April  1,  1879,  (XYI 
Opins.  — ,)  noted  under  One  Hundred  and  Sixth  Article. 


DISMISSAL,  IT — BY   THE   ORDER   OF   THE   PRESIDENT.   241 


6.  Held  that  it  could  not  aifect  the  operation  of  an  order 
summarily  dismissing  an  officer  as  '•'  second  lieutenant/'  that, 
before  its  being  communicated  to  him  by  being  x)romulgated 
to  the  regiment,  he  had  become  by  i)romotion  a  first  lieutenant. 
VI,  558. 

7.  A  dismissal  of  an  officer  by  executive  order  does  not 
operate  to  disquaUfy  him  for  reappointment  to  military  office, 
or  for  appointment  to  civil  office  under  the  United  States. 
XXXVI,  330. 

8.  There  can  be  no  revocation  of  a  duly  executed  order  of  dis- 
missal, however  unmerited  or  injudicious  the  original  act  may 
be  deemed  to  have  been.  For  distinct  as  dismissal  by  order  is, 
in  its  nature^  from  dismissal  by  sentence,  (see  §  1  supraj)  the  effect 
of  the  proceeding  in  divesting  the  office  is  the  same  in  each 
case.  An  officer  dismissed  by  an  order,  though  his  dismissal 
may  have  involved  no  disgrace,  is  assimilated  to  an  officer 
dismissed  by  sentence,  (see  Dismissal,  I  §  6,)  in  so  far  that 
he  is  completely  relegated  to  a  civil  status,  having  in  law  no 
nearer  or  other  relation  to  the  military  ser\ace  than  has  any 
civilian  who  has  never  been  in  the  army.  Thus  an  order 
assuming  to  revoke  a  legal  order  of  dismissal  is  as  unauthor- 
ized as  it  is  ineffectual.  The  original  dismissal  is  an  act  done 
which  cannot  be  undone,  and  the  order,  which  is  the  evidence 
of  it,  is  therefore  incapable  of  revocation  or  recall.^  Xor  can 
that  be  affected  indirectly  which  cannot  legally  be  done 
directly.  An  officer  dismissed  by  executive  order  cannot  be 
relieved  by  being  allowed  to  resign  or  be  retired,  or  bj^  being 
granted  an  honorable  discharge.  For,  in  order  to  be  dis- 
charged, &c.,  from  the  army,  he  must  first  be  in  the  army, 
and  there  is  but  one  mode  by  which  an  officer  once  legally 
separated  from  the  army  can  be  put  into  it,  viz  :  by  a  new 
appointment  according  to  the  Constitution. ^    XXXI,  501  j 

'  See  IV  Opins.  of  Attys.  Gen.  124  5  XII  Id.  424-8;  XIV 
Id.  520  ;  XV  Id.  — ,  (Opinion  of  February  12, 1878.)  A  con- 
trary view  expressed  by  the  Court  of  Claims,  in  its  earUer 
period,  in  a  series  of  cases, — see  Smith  v.  United  States,  2 
Ct.  CI.  200 ;  Winters  v.  United  States,  3  Id.  130 ;  Barnes  v. 
United  States,  4  Id.  210;  Montgomery  v.  United  States,  5  Id. 
93, — was  finally'  practically  abandoned  iu  McElrath  v.  United 
States,  12  Id.  201. 

'  See  VIII  Opins.  of  Attvs.  Gen.  235 ;  XII  Id.  421 ;  XIH 
Id.  5;  McElrath  v.  United  States,  12  Ct.  CI.  202. 
10  D 


242         DISMISSAI.,  Ill— BY   ORDER :   TRIAL  IN   CASE   OF. 

XXXY,  392,  46G;  XXXYI,  216,  330  5  XXXVII,  451,- 
XXXYIII,  01,  159;  XXXIX,  248,  474;  XLI,  153,  611; 
XLII,  73.  [Compare  Dismissal,  I  §  0.  But,  in  connection 
with  the  general  rule  here  stated,  see  Dismissal,  III.] 


DISMISSAL,  III— BY  OEDER:  TRIAL  IN  CASE  OF. 

[Act  of  March  3, 1805,  c.  79,  s.  12 1— now  Sec.  1230,  Eev.  Sts.] 

1.  Held  that  the  provision  on  this  subject  of  the  Act  of 
1865 — referring  as  it  does  to  officers  "hereafter  dismissed" — 
was  not  retroactive  in  its  operation,  and  did  not  embrace 
cases  of  officers  dismissed  by  order  before  the  date  of  its 
passage.  XV,  150:  XYI,  631;  XX,  518.  And  similarly 
held  as  to  the  provision  now  incori^orated  in  Sec.  1230,  Rev. 
Sts. ;  the  same,  though  somewhat  differently  worded  from  the 
original  statute,  being  construed  as  not  intended  to  enlarge 
the  application  of  the  latter.^   XXXYII,  618;  XXXYIII,  160. 

2.  The  statute  does  not  indicate  within  what  period  after 
the  dismissal  the  application  for  a  trial  should  be  made.  It 
can  only  be  said  that,  in  preferring  it,  due  diligence  should  be 
exercised — that  it  should  be  presented  within  a  reasonable 
time.  XXI,  169.  Held  that  a  party  who,  (without  any  suffi- 
cient excuse,)  delayed  for  nine  years  to  apply  for  a  trial  under 
the  statute  might  well  be  regarded  as  having  waived  his  right 
thereto.^  It  could  scarcely  have  been  contemplated  by  Con- 
gress that  a  dismissed  officer  should  be  at  liberty  to  defer  his 
api)lication  for  a  trial  till  the  evidence  on  which  he  was  dis- 
missed, or  a  material  part  of  the  same,  had  ceased  to  exist, 
and  his  restoration  would  thus  be  made  certain.    XLII,  446. 

3.  Though  it  may  be  sufficient  that  the  application  made 
under  the  statute  should  state  simply  that  the  applicant  has 

^This  statute  was  held  by  the  Attorney  General,  (XII 
Opins.  4,)  not  to  be  unconstitutional,  in  that  it  was  not  "ob- 
noxious to  the  objection  that  it  invades  or  frustrates  the 
power  of  the  President  to  dismiss  an  officer."  More  serious 
objections  to  its  constitutionality  are  believed  to  be :  1,  that  it 
authorizes  the  subjecting  to  military  trial  of  a  civilian :  2,  that 
in  restoring  an  officer  to  the  army  it  substitutes  the  action  of 
a  court  martial  for  the  appointing  power  of  the  President. 

^  See,  to  a  similar  eftect,  the  opinion  of  the  Solicitor  General 
of  May  29,  1878,  (XYI  Opins.  — .) 

=^  Compare  lY  Opins.  of  Attys.  Gen.  170 ;  Y  Id.  384. 


243 

been  ^'wrongfully  "  dismissed,  the  preferable  form  would  be 
for  the  applicant  to  set  forth  in  ichat  the  alleged  wrong  con- 
sisted.   XVI  513. 

4.  Where  atrial  of  a  volunteer  officer  under  this  statute 
resulted  in  an  acquittal,  and  his  original  dismissal  thus  became 
'*  void,"  but  meanwhile  his  regiment  had  been  mustered  out 
of  service,  Jielcl  that  he  was  properly  entitled  to  an  honorable 
discharge  as  of  the  date  of  the  muster  out  of  the  regiment,  with 
full  pay  and  allowances  up  to  that  time.     XIT,  659. 

5.  Whatever  might  be  the  effect,  under  existing  law,  upon 
the  status  of  a  volunteer  officer,  acquitted  or  not  dismissed  by 
a  court  martial  upon  a  trial  under  this  statute,  of  the  fact  that 
the  vacancy  created  hy  his  original  dismissal  had  been  mean- 
while filled, — held  that  the  effect  in  a  similar  case  of  an  officer 
of  the  regular  army  would  be  to  add  him  to  the  army  as  an 
extra  officer  in  his  previous  grade.     XVI,  1G9;  XX,  188. 

6.  Under  the  statute  of  1865  there  were  but  few  trials  ;  this 
legislation  having  been  followed  in  the  next  year  by  the  pro- 
vision of  the  Act  of  July  13,  1866,  (now  incorporated  in  the 
second  clause  of  Sec.  1229,  Eev.  Sts.,  and  the  new  99th  Arti- 
cle of  War,)  prohibiting  executive  dismissals  of  officers  of  the 
army  and  navy  in  time  of  peace.  Since  the  date  of  this  Act 
there  have  been  no  trials  under  the  Act  of  1865 :  the  later 
statute  indeed  would  appear  to  have  deprived  the  earlier  one 
of  all  present  application  and  effect.  Thus  Jield^  (December, 
1879,)  that  an  officer  dropped  for  desertion  under  the  first 
clause  of  Sec.  1229,  Eev.  Sts.,  was  not  entitled,  ui^on  api^lica- 
tion  therefor,  to  a  trial  under  Sec.  1230  j  that  the  provision 
of  the  former  section  making  such  an  officer  ineligible  for 
re-apj)ointment  in  the  army  was  incomi^atible  with  his  resto- 
ration by  the  action  of  a  court  martial  under  the  latter  sec- 
tion ;  and  that  the  latter  section  ai^iilied  only  to  officers  dis- 
missed by  order  of  the  President,  under  the  general  power  to 
remove  public  officers  appointed  by  him  and  frequently  exer- 
cised in  cases  of  army  officers  during  the  late  war,  (see  Dis- 
missal, II  §  1,)  but  which,  as  to  its  exercise  in  time  of  peace^ 
had  been  divested  by  Congress  by  the  Act  of  July  13,  1866. 
XLII,  446. 

7.  Although  the  Act  provides  that  if  the  sentence  of  the 
court  be  not  one  of  death  or  dismissal,  the  party  tried  shall 
be  restored  to  his  office,  yet  lield^  in  a  case  in  which  the  court 


244      DISOBEDIENCE   OF   ORDERS — DISQUALIFICATION. 

acquitted  the  accused,  that  the  President  possessed  the  author- 
ity, vested  in  reviewing  officers  in  all  other  cases  tried  by 
court  martial,  of  returning  the  proceedings  to  the  court  for 
revision  J  (see  Ee  vision,)  and  was  therefore  empowered  to 
re-assemble  the  court  for  a  reconsideration  of  the  testimony, 
on  the  ground  that  the  same  did  not,  in  his  oi)inion,  justify 
the  acquittal.    XIX,  191. 

DISOBEDIENCE  OF  ORDERS. 

See  twenty  FIEST  ARTICLE  §  5—10. 

DISaUALIFICATION. 

Disqualification,  or  incapacity  to  hold  office  under  the 
United  States,  is  a  punishment  certainly  sanctioned  by  pre- 
cedent in  the  military  service.  It  is  indeed  siDCcifically 
authorized  in  two  Articles  of  war,  Xos.  6  and  14,  (providing 
for  the  punishment  of  false  muster  and  like  offences,)  but  is 
here  apparently  intended  not  as  an  independent  punishment 
but  as  a  penal  consequence  incident  ui^on  conviction  and  sen- 
tence of  dismissal.  As  a  distinctive  punishment,  however, 
it  has  been  imi)osed  in  many  cases,^  and  has  apparently  been 

^Instances  of  sentences,  including,  (generally  with  dis- 
missal,) the  punishment  of  disqualification,  are  to  be  found 
in  the  following  Orders  of  the  War  Department  (or  Hdqrs. 
of  Army,)  published  before  the  late  war,  the  instances  being 
none  of  them  cases  of  conviction  of  false  muster  : — Gr.  O.  of 
April  2,  1818 ;  do.  of  Sept.  25,  1819  ;  do.  71  of  1829;  do.  15  of 
1860.  [The  iufrequency  of  this  punishment  in  the  early 
Orders  may  x)erhai)s  be  owing  in  part  to  the  fact  that  it  was 
considered  that  "cashiering" — a  sentence  often  adjudged — 
involved  disqualification.  See  Cashiering.]  Similar  in- 
stances of  the  same  punishment  occur  in  the  following  Orders 
issued  from  the  War  Department  during  and  since  the  late 
war:  G.  O.  18,  94,159,  184,  242,  249,  332,  389,  of  1863;  do. 
36,  51,  69,  of  1864;  G.  0.  M.  O.  175,  251,  277,  369,395,  404,  of 
1864 ;  do.  6,  46,  85,  125,  201,  205,  219,  232,  238,  260,  270,  315, 
365,  397,  432,  541,  5G5,  584,  602,  649,  of  1865  ;  do.  22,  68,  82, 
89,  111,  161,  181,  of  1866;  do.  21,  52,  56,  62,  89,  91,  98,  of 
1867;  do.  2,58,  of  1868;  do.  44  of  1869;  do.  14,  15,  of  1870. 
Instances  of  this  punishment  have  also  been  noted  in  the  fol- 
lowing Orders  issued  from  the  military  De])aTtinents,  Ai'inies, 
&c.:  G.  O.  60,  64,  76,  SG,  89,  99,  106,  of  1863;  do.  2,  4,  20,  24, 


DISQUALIPICATTON.  245 

regarded  as  a  particularly  suitable  penalty  in  cases  of  embez- 
zlement of  public  funds  or  other  fraud  upon  the  government. 
In  some  instances  the  disqualification,  as  adjudged,  has 
extended  to  the  holding  of  public  office  in  general ;  in  others 
it  has  been  confined  to  the  holding  of  military  office.  Dis- 
qualification, being  a  continuing  j)unishment,  may  of  course 
be  removed  by  a  remission  of  the  same,  by  the  pardoning 
power,  at  any  time  during  the  life  of  the  party.  But,  wliile  the 
disqualification  for  military  office  is  less  objectionable  than  the 
more  general  form,  it  may  well  be  doubted  whether  this  spe- 
cies of  punishment,  inasmuch  as  it  assumes  in  effect  to  inhibit 
the  exercise  by  the  Executive  of  the  appointing  power,  is 

28, 30, 32, 51,  of  18G4 ;  do.  9, 12,  of  1865— Armv  of  the  Potomac : 
do.  18,81,  of  1864;  do.  11,  of  1865— Dept.  of  the  East:  do.  81  of 
1864— Dept.  of  Pennsylvania:  do.  96  of  1864;  do.  23,  27,  of 
1865- Middle  l^epartment :  do.  22  otf  1865— Middle  Military 
Division :  do.  15  of  1863;  do.  30  of  1865 — Dept.  of  West  Vir- 
ginia :  do.  34, 113,  175,  of  1864 ;  do.  49,  82,  of  1865- Dept.  of 
Virginia  and  jS^orth  Carolina:  do.  32,  33,  of  1864 — Dept.  of 
the  Ohio:  do.  19  of  1865— Dept.  of  Kentucky :  do.  17,  21,  33, 
of  1863— Dept.  of  the  Tennessee :  do.  3  of  18(33 ;  do.  6,  22,  of 
1864 — Dept.  and  Armv  of  the  Tennessee :  do.  14  of  1865 ;  do. 
5  of  1866— Dept.  of  Tennessee :  do.  21  of  1863 ;  do.  24  of  1864 ; 
do.  77,  112,  of  1865— Dept.  of  the  Missouri:  do.  8  of  1866— 
Dept.  of  Florida :  do.  67  of  1863 ;  do.  74.  of  1865— Dept.  of  the 
Gulf:  do.  55  of  1864— Mil.  Div.  of  W.  Mississippi:  do.  87  of 
1867 — Second  Mil.  Dist.  This  punishment,  however,  has, 
since  1870,  been  discontinued  in  the  practice  of  our  courts 
martial,  and  this  discontinuance  is  to  be  traced  to  the  ruling 
of  the  Attorney  General  in  an  opinion  addressed  to  the  Sec- 
retary of  the  Navy  in  1868,  (XII  Opins.  528,)  to  the  effect  that 
a  sentence  of  a  naval  court  martial  by  which  a  contractor  for 
naval  supplies  was  excluded  from  future  dealings  for  such  su^i- 
plies  with  the  government,  was  illegal ;  sentences  of  disabilitj^ 
in  general  being  further  held  to  be  "  not  in  accordance  with 
the  custom  of  the  service  except  where  expressly  authorized 
by  law."  This  ruling  Avas  applied  to  a  militarv  case  in  G. 
d.  M.  O.  22,  (as  also  in  do.  57,)  War.  Dept.,  &c.,  W  1870,  and 
the  punishment  of  disqualification  imposed  upon  an  officer  dis- 
approved as  unauthorized.  But  whatever  may  have  been  the 
usage  of  naval  courts  martial,  the  very  numerous  precedents 
of  cases  in  which  such  punishment  had  been  adjudged  by  mil- 
itary  courts  for  a  great  variety  of  offences,  were,  it  is  consid- 
ered, quite  sufficient  to  have  established  that  this  i)enalty  was 
sanctioned  by  custom  in  the  army.  That  it  is,  however,  sub- 
ject, intrinsically,  to  serious  legal  objection,  is  indicated  in  the 
text. 


246  DISTRICT   OF   COLUMBIA — DliUNKENNESS. 

witliin  the  authority  of  a  court  martial.  As  will  be  perceived 
from  the  note,  this  punishment  has  been  discontinued  in  our 
service,  but  on  another  and  less  tenable  ground.  XXXI,  24 ; 
XLI,  158  5  XLII,  036. 


DISTRICT  OF  COLUMBIA. 

See  martial  LAW  ^  5. 

MILITARY  RESERVATION  $  7. 


DIVISION. 

See  seventy  THIRD  ARTICLE  $  1. 

ONE  HUNDRED  AND  FOURTH  ARTICLE  $  6. 
DEVOLUTION  OF  COMMAND. 


DRUNKEHHESS. 

1.  While  drunkenness  is  no  excuse  for  crime,  ^  and  one  who 
becomes  voluntarily  drunk  is  criminally  responsible  for  all 
offences  committed  by  him  while  in  this  condition,  yet  the 
fact  of  the  existence  of  drunkenness  may  be  proper  evidence 
to  determine  the  question  of  the  species  or  grade  of  crime 
actually  committed,  especially  where  the  jioint  to  be  decided 
is  whether  the  accused  was  actuated  by  a  certain  specific  in- 
tent. Thus  the  fact  and  measure  of  the  drunkenness  of  the 
accused  may  properly  be  considered  by  the  court  as  affecting 
the  question  of  the  existence  of  an  animus  furandi  in  a  case 
of  alleged  larceny .^     XXIII,  222;  XXX,  337. 

K^oke,  in  laying  down  the  doctrine,  now  general,  that 
drunkenness  does  not  extenuate  but  rather  aggravates  the 
oftence  actually  committed,  says :  "  It  is  a  great  offence  in 
itself."  Beverly's  case,  4  Coke,  123,  b.  So— '^  The  law  will 
not  suffer  any  man  to  privilege  one  crime  by  another."  Black- 
stone,  4  Com.  26.  "  The  vices  of  men  cannot  constitute  an 
excuse  for  their  crimes."  Story  J.,  in  United  States  ?;.  Cor- 
nell, 2  Mason,  111.  As  to  the  offence  of  drunkenness  in  gen- 
eral, at  military  law — see  Thiuty  EianTii  Article  §  9. 

^Eex^.  Pitman,  2  C.&  P.  423;  IBish.Cr.L.  §'490.  So,  the 
fact  of  drunkenness  has  been  held  admissible  in  evidence  in 
cases  of  homicide,  upon  the  question  of  the  existence  of  malice 
as  distinguishing  murder  from  manslaughter;  as  also  upon 
the  question  of  deliberate  intent  to  kill  iu  States  where  the 
law  distinguishes  degrees  of  murder.     State  v.  Johnson,  40 


DRUNKENNESS  ON  DUTY.  247 

2.  Drunkeoness  caused  by  morpliine  or  other  drug,  (see 
Thirty  Eighth  Article  §  8,)  i)rescribed  by  a  medical  offi- 
cer of  the  army  or  civil  i)hysician,  may  constitute  an  excuse 
for  a  breach  of  discipline  committed  by  an  officer  or  soldier, 
provided  it  quite  clearly  api)ears  that  this  was  the  sole  cause 
of  the  offence  committed,  the  accused  not  being  chargeable 
with  negligence  or  fault  in  the  case.     XXVIII,  390. 

3.  At  military  law,  where  drunkenness,  (the  fact  of  the 
existence  of  which  may  always  be  x:)ut  in  evidence,)  has  en- 
tered into  the  commission  of  a  specific  offence  requiring  a 
peculiar  deliberate  intent,  (such  as  desertion,  mutiny,  or  diso- 
bedience of  orders,)  it  will  in  general  be  more  logical,  as  well 
as  more  just,  to  charge  the  offender,  not  with  the  specific 
offence,  but  with  the  drunkenness  as  an  aggravated  disorder, 
under  Art.  62.  XXXY,  325.  Where  it  is  shown  that  the 
accused  became  drunk  in  the  comi3any  of  a  military  superior, 
who  drank  with  him,  or  exerted  no  authority  to  prevent  his 
indulging  to  excess,  this  fact  should  avail  materially  to  miti- 
gate the  sentence  imposed  upon  him  by  the  court.  In  such  a 
case  indeed  it  is  the  superior  who  mainly  deserves  trial  and 
punishment.     XXXYI,  446. 

See  third  ARTICLE  $  3. 

THIRTY  EIGHTH  ARTICLE  ^W,  8  ,  9. 
SIXTY  FIRST  ARTICLE  ^  7,  8. 
SIXTY  SECOND  ARTICLE  ^  6. 
EVIDENCE  $  6. 
RETIREMENT  ^  5. 


DRUNKENNESS  ON  DUTY. 

See  THIRTY  EIGHTH  ARTICLE. 

Conn.  136,  and  41  Id.  588 ;  People  v.  Eogers,  18  X.  York,  9 ; 
People  V.  Hammill,  2  Parker,  223  5  People  v.  Eobinsou,  Id. 
235 ;  State  v.  McCants,  1  Speers,  384  ;  Kelly  v.  State,  3  Sm. 
&  M.  518 ;  Shannahan  v.  Commonwealth,  8  Bush,  463 ;  Swan 
V.  State,  4  Humph.  136 ;  Pirtle  v.  State,  9  Id.  663 ;  Haile  v. 
State,  11  Id.  154 ;  People  v.  Belencia,  21  Cal.  544 ;  People  v. 
King,  27  Id.  509 ;  People  v.  Williams,  43  Id.  344;  3  Greenl. 
Ev.  §§  6,  148;  1  Bish.  Cr.  L.  §  492,  493. 


248  EMBEZZI.EMENT — ENLISTMENT. 


E, 


EMBEZZLEMENT. 

See  sixtieth  ARTICLE  $  7-11. 
SIXTY  SECOND  ARTICLE  §  2. 


EMINENT  DOMAIN. 

See  national  CEMETERY  §  2. 

PUBLIC  PROPERTY— DISPOSITION  OF,  &c.  $  8. 


ENEMY. 

See  forty  FIFTH  ARTICLE  ^  2. 

MILITARY  COMMISSION,  II  $  7,  note  2. 


ENGINEER  CORPS. 

See  eighty  FIRST  ARTICLE  $  1. 
CIVIL  OFFICE  ^  4,  5. 

IMPROVEMENT  OF  RIVERS  AND  HARBORS  §  2,  3. 
PAY  AND  ALLOWANCES  §  23. 


ENLISTMENT. 

1.  Our  law  not  defining  enlistment^  nor  designating  what 
proceeding  or  proceedings  shall  or  may  constitute  an  enlist- 
ing, it  may  be  said  in  general  that  any  act  or  acts  which 
indicate  an  undertaking,  on  the  part  of  a  i^erson  legally  com- 
petent to  do  so,  to  render  military  service  to  the  United 
States  for  the  term  required  by  the  existing  law,  and  an  ac- 
ceptance of  such  service  on  the  part  of  the  government,  may 
ordinarily  be  regarded  as  legal  evidence  of  a  contract  of 
enlistment  between  the  parties,  and  as  equivalent  to  a  formal 


ENLIST]MENT.  249 

written  agreement  wliere  no  such  agreement  lias  been  liad.^ 
Tlie  Forty- Seventh  Article  practically  makes  the  receipt  of 
pay  by  a  i^arty  as  a  soldier  evidence  of  an  enlistment  on  his 
part,  estopping  him  from  denying  his  military  capacity  when 
sought  to  be  made  amenable  as  a  deserter.  So  held  that  the 
fact  that  a  party,  after  having  been  armed  and  clothed  as  a 
soldier,  had  voluntarily  rendered  material  service  as  such, 
although  he  had  received  no  pay,  constituted  prima  facie 
evidence  that  a  legal  contract  of  enlistment  had  been  entered 
into  between  hiui  and  the  United  States.  V,  G18j  VII,  132; 
XII,  361 ;  XIX,  397.  But  enlistments  in  our  army  are  now 
almost  invariably  evidenced  by  a  formal  writing  and  engage- 
ment under  oath.  [See  Second  Article;  also,  as  illustrat- 
ing what  constitutes,  or  rather  does  not  constitute,  a  formal 
enlistment.  Sixty  Second  Article  §  7.] 

2.  A  mere  non-compliance  with  an  army  regulation,  in  mak- 
ing an  enlistment,  does  not  j;er  se  affect  the  validity  of  the 
contract.  Thus  the  fact  that  the  recruiting  officer  has  know- 
ingly enlisted  a  married  man  in  derogation  of  par.  930  of  the 
Regulations,  or  that  a  married  man  has  procured  himself  to 
be  enlisted  under  a  representation  that  he  was  unmarried, 
does  not  affect  the  validity  of  the  enlistment.  In  such  a  case 
the  President  or  Secretary  of  War  may,  in  his  discretion, 
forthwith  discharge  the  soldier  under  the  Fourth  Article  of 
War,  or  may  hold  him  regularly  to  service  for  the  term  for 
which  he  has  enlisted.  ^  XXXII,  72;  XXXVIII,  61G; 
XXXIX,  4G7. 

3.  Sees.  1116-1118,  Rev.  Sts.,  providing  that  deserters,  con- 
victed felons,  insane  or  intoxicated  persons,  and  certain  minors, 
shall  not  be  enlisted,  &c.,  are  regarded  as  directory  only,  aud 

^  "On  a  charge  of  desertion,  or  other  offence  agaiust  mili- 
tary discipline,  it  will  be  sufficient  to  i^rove  that  the  accused 
received  the  pay,  or  did  the  duties  of  a  soldier,  without  other 
l)roof  of  his  enlistment  or  oath."  3  Green  1.  Ev.  §  483.  And 
see  Leoanon  v.  Heath,  47  X.  Hamp.  359  ;  Ex  parte  AndevsoUy 
16  Iowa,  599. 

-In  Ex  parte  Schmeid,  1  Dillon  C.  G.  587,  an  api>lication  for 
a  discharge  from  his  enlistment,  made  by  a  soldier  who  had 
enlisted  as  an  unmarried  man,  and  based  upon  the  ground 
that  he  had  in  fact  a  wife  and  child  at  the  time  and  that  his 
enhstment  was  therefore  a  nullity,  was  refused  by  the  court 
on  habeas  eorpus.  And  see  the  similar  ruling  in  Ferren's  Gase, 
3  Benedict,  442. 


250  ENLISTMENT. 

not  as  necessarily  making  void  sncli  enlistments  but  as  ren- 
dering them  voidable  merely,  at  the  option  of  the  government.^ 
In  cases  of  such  enlistments,  excei^t  of  course  where  the  party, 
by  reason  of  mental  derangement  or  drunkenness,  was  with- 
out the  legal  capacity  to  contract,  the  government  may  elect 
to  hold  the  soldier  to  service,  subject  to  any  application  for 
discharge  which  maybe  addressed  by  himself  or  his  parent, 
&c.,  either  to  the  Secretary  of  War  or  to  a  United  States  court.^ 
XXXI,  342,  595 ;  XLIII,  167.     [See  Third  Article  §  1.] 

A  deserter  who  enlists  and  afterwards  again  deserts  cannot, 
on  being  brought  to  trial  for  the  second  ofience,  defend  on 
the  ground  that  his  enlistment  was  void  and  that  he  is  not 
therefore  amenable  to  trial.  A  x>lea  or  defence  to  this  effect 
should  not  be  sustained  by  the  court.     XXXII,  506. 

The  enlistment  in  our  army  of  a  deserter  from  the  navy  is 
not  prohibited  by  any  statute.  Where,  therefore,  such  an 
enlistment  had  been  (unadvisedly)  made,  lield  that — although 
the  proper  disposition  of  the  party  would  probably  be  to  dis- 
charge him  and  turn  him  over  to  the  naval  authorities — the 
contract  was  certainly  valid  in  law.     XLIII,  167. 

4.  In  cases  of  api>lications  for  discharge  from  enlistment 
on  the  ground  of  minority,  the  Secretary  of  War  is  authorized 
to  receive  evidence  upon  and  determine  the  question  of  actual 
age,  though  the  party  upon  enlistment  may  have  sworn  or 
declared  in  writing  that  he  was  of  full  age;  ^  the  provision  of 
the  Act  of  Feb.  13,  1802,  that  the  statement  as  to  age  in  the 
oath  of  enlistment  shall  be  conclusive,  being  no  longer  in  force. 
XXXVII,  508 ;  XXXY III,  294.    [See  Second  Article  §  2.] 

^  See  United  States  v.  Wyngall,  5  Hill,  16 ;  United  States  v. 
Cottingham,  1  Eob.  631 ;  Commonwealth  v.  Baker,  5  Binney, 
427  ;  In  matter  of  Graham,  8  Jones'  Law,  416 ;  Cox  v.  Gee, 
Winst.  L.  &  E.  131. 

^  Under  the  existing  law  the  authority  to  dis(;harge  soldiers 
on  account  of  minority,  «&c.  is  not  reserved  to  the  Secretary 
of  War  alone,  but  the  United  States  courts  are  empowered  to 
inquire  into  the  validity  of  enlistments  on  habeas  corpus^  and 
thereupon  to  discharge  enlisted  persons  in  i:)roper  cases.  Ex 
parte  Schmeid,  I  Dillon,  587.  In  re  McDonald,  Lowell,  106  ; 
McOouologue's  case,  107  Mass.  154.  This  power  can  not 
legally  be  exercised  by  a  State  court.  Tarble's  case,  13  Wal- 
lace, 397.    See  Habeas  Corpus  §  3,  note. 

^  See  XIV  Opius.  of  Attys.  Gen.  210 ;  Seavey  v.  Seymour, 
3  Clifford,  440,  447. 


ENLISTMENT.  251 

5.  A  minor  cannot  assume  to  discharge  himself  on  the 
ground  that  his  enlistment  was  illegal :  he  would  attemi)t  it 
at  the  risk  of  being  treated  as  a  deserter.     XXXI,  595. 

6.  Where  a  soldier,  otherwise  subject  to  be  discharged  on 
account  of  minority,  is  held  in  arrest  prior  to  trial,  or  under 
sentence,  as  a  deserter,  an  application  for  his  discharge  by  a 
I)arent  entitled  to  claim  his  services,  (whether  addressed  to 
the  Secretary  of  War  or  to  a  U.  S»  Court,)  will  not  be  favora- 
bly entertained.  ^  In  such  a  case  the  interest  of  the  public  in 
the  administration  of  justice  is  paramount  to  the  right  of  the 
parent,  and  requires  that  the  party  shall  abide  the  legal  con- 
sequences of  his  military  offence  before  the  question  of  the 
right  of  discharge  bepassed upon.  XXXVII,  549  j  XXXVIII, 
651 ;  XXXIX,  572,  602.  And  similarly  held  in  a  case  of  a 
soldier  who,  at  the  time  of  the  ai)plication  for  his  discharge 
on  account  of  minoritj",  was  under  sentence  on  con\dction  of 
embezzlement.    XXXIX,  183. 

7.  The  Act  of  March  3,  1869,  c.  124,  s.  4,  (incorporated  in 
Sec.  1119,  Eev.  Sts.,)  provides  that:  "AU  enlistments  in  the 
army  shall  be  for  the  term  of  five  years."  In  a  case  of  an 
enlistment  for  three  years  made  after  the  date  of  the  Act ; 
lield^  (the  objection  here  not  being  merely  personal  to  the 
party,  but  going  to  the  very  substance  of  the  contract,)  that 
such  enlist Qient  was  invalid,^  and  that  the  party  should  be 
discharged, — to  be  re-enlisted,  if  he  desired,  for  the  legal  term. 
XXIX,  432. 

8.  There  is  no  law  or  regulation  affecting  the  validity  of  an 
enlistment  made  on  a  Sunday.^    XXXIII,  562. 

9.  While  a  contract  of  enlistment  may  at  any  time  be  ter- 
minated by  the  Secretary  of  War,  by  a  summary  discharge  of 
the  soldier,  under  the  authority  of  the  Fourth  Article,  the 
Executive  is  not  empowered  to  modify  the  material  condi- 
tions of  such  contract  while  it  remains  in  force.^     Congress, 

*  Commonwealth  v.  Gamble,  11  Sergt.  &  Eawle,  93;  also 
McConologue's  case,  107  Mass.  170;  In  matter  of  Beswick,  25 
How.  Pr.  149;  Ex  i^arte  Anderson,  16  Iowa,  599. 

^  See  this  ruling,  as  followed  by  the  reviewing  authority  in 
the  same  case,  in  the  subsequent  (j.  O.  82,  Dept.  of  Dakota, 
1869.     And  comx^are  IV  Opins.  of  Attys.  Gen.  537. 

^  The  same  is  held  in  the  English  case  of  Wolton  v.  Gavin, 
16  Q.  B.  48. 

^  In  an  opinion  of  Sept.  1, 1877,  (XV  Opins. ,)  it  was  held 

by  the  Attorney  General  that  the  Secretary  of  War  was  not 


252  ENLISTMENT. 

however  in  the  exercise  of  its  power  ^'  to  raise  and  support 
armies/'  and  "  to  make  rules  for  the  government  and  regula- 
tion of  the  land  forces,"  is  authorized  to  increase  or  diminish 
the  compensation  of  a  soldier  during  his  term  of  enlistment. 
Thus  held  that  a  contract  of  enlistment  was  not  violated  on 
the  part  of  the  United  States,  by  the  reduction  by  Act  of 
Congress,  i^ending  his  enlistment,  of  the  pay  of  a  soldier  from 
sixteen  to  thirteen  dollars  per  month.^     XXXIV,  442. 

10.  Meld^  in  view  of  the  ruling  of  the  courts  on  the  sub- 
ject,^ that  certain  volunteer  soldiers  enlisted  in  1862,  "  for  three 
years  or  during  the  war,"  could  not  legally  be  retained  in  the 
military  service  for  a  longer  x^eriod  than  three  years,  though 
the  war  should  not  be  terminated  at  the  end  of  that  time. 
XLII,  524. 

11.  Under  the  existing  law,  (July,  1880,)  all  enlistments  are 
for  military  service,  and  there  is  no  such  proceeding  recognized 
as  an  enlistment  in  "the  General  Service"  so  called,  or  as  a 
cleric.  A  i^rovision  indeed  of  the  Ai^propriation  Act  of  June 
15,  1880,  empowers  the  Secretary  of  War  to  detail  a  certain 
number  of  enlisted  men  for  clerical  service  in  the  War  De- 
IDartment,  but  it  does  not  authorize  the  enlistment  of  xiersons 
for  such  service.  Thus,  where  a  party  had  been  enlisted  as 
a  soldier  in  the  usual  form,  but  with  the  understanding,  sanc- 
tioned by  the  authority  of  the  Secretary  of  War,  that  he  was 

empowered  to  suspend  the  contract  of  enlistment  of  a  soldier, 
by  allowing  him  to  engage  in  a  certain  civil  occupation  for  a 
time  and  then  resume  his  military  service  under  his  enlist- 
ment,— or  otherwise  to  vary  the  terms  of  the  contract,  even 
with  the  consent  of  the  soldier. 

^  In  the  written  form  of  enlistment,  which,  though  not  re- 
quired by  any  law,  is  now  (1880)  in  use  in  the  recruiting  serv- 
ice, the  soldier,  on  enlisting,  is  made  to  "  agree  to  accept  from 
the  United  States  such  bounty,  pay,  rations  and  clothing  as 
are  or  may  be  established  bylaw."  The  obligation  here  indi- 
cated, however,  would  exist  independently  of  any  specific 
agreement. 

^  In  Breitenbach  v.  Bush,  44  Pa.  St.  317-18,  the  Supreme 
Court  of  Pennsylvania  held  that  an  enlistment  of  a  soldier 
'''for  three  years  or  during  the  war^''  meant — "  three  years  from 
the  date  of  his  muster,  if  the  war  should  last  so  long,  and  if 
it  should  not,  then  until  it  should  end.  The  reference  to  the 
duration  of  the  war  is  a  restriction  not  an  extension  of  the 
teriu."  And  see  Clark  i;.  Martin,  3  Grant's  Cases,  393:  Id., 
5  Philad.  251. 


ESCAPE— EVIDEIS^CE.  253 

to  be  cletailed  and  employed  as  a  clerk  under  said  Act, — held 
that,  in  strict  law,  he  might  be  employed  upon  any  other  duty 
of  a  military  character.  But  at  the  same  time  advised  that 
good  faith  to  him  would,  under  the  circumstances,  properly 
require  that,  in  case  it  were  determined  not  to  be  for  the 
public  interest  to  employ  him  for  clerical  service,  he  should 
be  allowed  the  option  of  being  discharged  from  the  army. 

XLIII,  376. 

See  fiftieth  ARTICLE. 
STOPPAGE  $  3. 

ESCAPE. 

See  sixty  SECOND  ARTICLE  $  6. 
SIXTY  sixth  article. 
COURT  MARTIAL,  I  ^  22. 

defence  §  1. 

DESERTION  §  4. 
IMPRISONMENT  $  12,  13. 
MANSLAUGHTER  §  4. 

EVIDENCE. 

1.  Courts-martial  should  in  general  of  course  follow — so  far 
as  apposite  to  military  cases — the  rules  of  evidence  observed 
by  the  civil  courts,  and  especially  the  courts  of  the  United 
States,  in  criminal  cases.^  They  are  not  bound,  however,  by 
any  statute  in  this  i)articular,  and  it  is  thus  open  to  them,  in 
the  interests  of  justice,  to  apply  these  rules  with  more  indul- 
gence than  the  civil  courts ; — to  allow  for  exami)le,  more  lat- 
itude in  the  introduction  of  testimony  and  in  the  examina- 
tion and  cross-examination  of  witnesses  than  is  commonly 
permitted  by  the  latter  tribunals.  In  such  particulars,  as 
persons  on  trial  by  courts-martial  are  ordinarily  not  versed  in 
legal  science  or  practice,  a  liberal  course  should  in  general  be 
pursued,  and  an  over- technicality  be  avoided.^  XXXI,  273  j 
XLIl,  74. 

^See  3  Greeul.  Ev.  §476;  Lebanon  v.  Heath,  47  X.  Hamp. 
359  ;  People  i\  Van  Allen,  5d  X.  York,  39 ;  II  Opins.  of  Attvs. 
Gen.  343  ;  Grant  v.  Gould,  2  II.  Black.  87  ;  1  McArthur  47  ; 
Harcourt,  70;  DeHart,  334;  O'Brien,  109;  G.  O.  51,  Middle 
Dept.,  1805;  G.  C.  M.  O.  60,  Dept.  of  Texas,  1879;  do.  3,  52, 
De])t.  of  the  East,  1880. 

^  Compare  the  views  expressed  in  G.  C.  M.  0. 32,  War  Dept., 
1872;  do.23,Dept.  of  Texas,  1873;  do.  00,  Dept.  of  California, 
1873. 


254  EVIDENCE. 

2.  The  rules  of  evidence  sliould  be  applied  by  military 
courts  irrespective  of  the  rank  of  the  person  to  be  affected. 
[Compare  Defence  §  4.]  Thus  a  witness  for  the  prosecution, 
whatever  be  his  rank  or  office,  may  always  be  asked,  on  cross- 
examination,  whether  he  has  not  expressed  animosity  toward 
the  accused,  as  well  as  whether  he  has  not  on  a  previous  oc- 
casion made  a  statement  contradictory  to  or  materially  differ- 
ent from  that  embraced  in  his  testimony.  Such  questions  are 
admissible  by  the  established  law  of  evidence,  and  imply  no 
disrespect  to  the  witness,  nor  can  the  witness  properly  decline 
to  answer  them  on  the  ground  that  it  is  disrespectful  to  him 
thus  to  attempt  to  discredit  him.^     XXXII,  642;  XLI,  33. 

3.  The  weight  of  evidence  does  not  depend  upon  the  iium- 
her  of  the  witnesses.  A  single  witness,  whose  statements, 
manner,  and  appearance  on  the  stand,  (see  Finding  §  14,)  are 
such  as  to  commend  him  to  credit  and  confidence,  will  some- 
times properly  outweigh  several  less  acceptable  and  satisfac- 
tory witnesses.-  But  a  court  martial  cannot  properly  exclude 
from  consideration  the  testimony  of  a  witness  because  it  is 
diffuse  and  inconclusive,  (peculiarities  which  may  result  from 
embarrassment  or  infelicity  of  expression,)  provided  it  be 
pertinent  to  the  issue.     XXXY,  55. 

4.  Evidence  of  the  good  character,  record,  and  services  of 
the  accused  as  an  officer  or  soldier,  is  admissible  in  all  mili- 
tary cases  without  distinction — in  cases  where  the  sentence  is 
mandatory  as  well  as  those  where  it  is  discretionary,  upon 
conviction.  For,  where  such  evidence  cannot  avail  to  affect 
the  measure  of  punishment,  it  may  yet  form  the  basis  of  a 
recommendation  by  the  members  of  the  court,  or  induce 
favorable  action  by  the  reviewing  officer  whose  approval 
is  necessary  to  the  execution  of  the  sentence.  XIX,  35  j 
XXXYI,  446,  471.  Where  such  evidence  is  introduced,  the 
prosecution  may  offer  counter-testimony,  but  it  is  an  estab- 
lished rule  of  evidence  that  the  prosecution  cannot  attack  the 

^  See  opinion  of  the  Judge  Advocate  General,  as  adopted 
by  the  President,  in  G.  C.  M.  O.  GG,  Hdqrs.  of  Army,  1879 ; 
and  compare  remarks  of  reviewing  officers,  in  G.  0. 11,  Dept. 
of  California,  1865;  G.  C.  M.  O.  31,  Dept.  of  Dakota,  1869; 
do.  8,  Fourth  Mil.  Dist.,  1867. 

^  Compare  Rudolph  v.  Lane,  57Ind.  115  :  McCrum  v.  Corby, 
15  Kans.  117. 


EYIBENCE.  255 

character  of  the  accused  till  the  latter  has  introduced  evi- 
dence to  sustain  it,  and  has  thus  put  it  in  issue.     XXYIII,  593. 

5.  In  commencing  the  examination  of  a  witness,  it  is  a  lead- 
ing of  the  witness,  and  objectionable,  to  read  to  him  the  charge 
and  specification  or  sj)ecifications,  since  he  is  thus  instructed 
as  to  the  particulars  in  regard  to  which  he  is  to  testify  and 
which  he  is  expected  to  substantiate.^  So  to  read  or  state  to 
him  in  substance  the  charge,  and  ask  him  '  what  he  knows 
about  it,'  or  in  terms  to  that  effect,  is  loose  and  objectionable 
as  encouraging  irrelevant  and  hearsay  testimony.  The  wit- 
ness should  simi^ly  be  asked  to  state  what  was  said  and  done 
on  the  occasion,  &c.  A  witness  should  properly  also  be  ex- 
amined on  specific  interrogatories,  and  not  be  called  upon  to 
make  a  general  statement  in  answer  to  a  single  general  ques- 
tion.2    XXXVII,  87. 

6.  Upon  a  trial  where  the  offence  is  drunkenness  or  drunken 
conduct  charged  under  Article  G2,  or  drunkenness  on  duty 
charged  under  Article  38,  it  is  not  essential  to  confine  the 
testimony  to  a  description  of  the  conduct  and  demeanor  of 
the  accused,  but  it  is  admissible  to  ask  a  witness  directly  if 
the  accused  "  was  drunk,"  or  for  a  witness  to  state  that  the 
accused  "was  drunk,"  on  the  occasion  or  under  the  circum- 
stances charged.  Such  a  statement  is  not  viewed  by  the 
authorities  as  of  the  class  of  exi)ressions  of  opinion  which  are 
properly  ruled  out  on  objection  unless  given  by  experts,  but 
as  a  mere  statement  of  a  matter  of  ohservatlon^  palpable  to  per- 
sons in  general,  and  so  proper  to  be  given  by  any  witness  as 
a  fact  in  his  knowledge.^    XXII,  635 ;  XXIV,  79. 

7.  Except  by  the  consent  of  the  opposite  party,  the  testi- 
mony^ contained  in  the  record  of  a  previous  trial  of  the  same 
or  a  similar  case  cannot  properly  be  received  in  evidence  on 
atrial  by  court  martial;  nor  can  the  record  of  a  board  of 
investigation  ordered  in  the  same  case  be — otherwise — so 
admitted.     In  all  cases,  (other  than  that  provided  for  by  the 

1  Compare  G.  O.  12,  Dept.  of  the  Missouri,  1862;  do.  36  Id. 
1863;  do.  29,  Dept.  of  California,  1865;  do.  67  Dept.  of  the 
South,  1874. 

2  See  G.  C.  M.  O.  14,  24,  Dept.  of  Dakota,  1877. 

^People  V.  Eastwood,  14  X.  York,  562;  Stacy  v.  Portland 
Pub.  Co.,  (SS  Maine,  279;  Svdleman  i\  Beckwith!^43  Conn.  12; 
State  V.  Huxford,  47  Iowa,'l6;  G.  O.  42,  Dept.  of  the  Platte, 
1871. 


256  EVIDENCE. 

121st  Article  of  War,)  testimony  given  upon  a  previous  hear- 
ing, if  desired  to  be  introduced  in  evidence  upon  a  trial, 
must,  (unless  it  be  otherwise  si^ecially  stipulated  between  the 
parties,)  be  offered  de  novo  and  as  original  matter.  XIX, 
41 5  XXVII,  318.     [See  Seventeenth  Article  §  2,  note.j 

8.  Affidavits,  taken  ex  parte,)  and  not  as  depositions  under 
Art.  91,  are  in  no  case  admissible  as  evidence  on  a  trial  by 
court-martial,  if  objected  to.^     VII,  113. 

9.  The  muster  rolls  on  file  in  the  War  Department  are  offi- 
cial records,  and,  as  .^uch,  copies  of  the  same,  duly  certified^ 
are  presumptive  evidence,  in  the  absence  of  counter  testi- 
mony, that  the  facts  stated  therein  as  to  the  enlistment,  pay, 
&c.,  of  soldiers,  are  true^, — subject  of  course  to  be  rebutted 
by  evidence  that  they  are  mistaken  or  incorrect.  Ill,  423. 
So  though  such  rolls  may,  per  .s-e,  be  ])rima  facie  evidence 
that  the  soldier  was  duly  enlisted,  or  mustered  into  the 
ser\dce,  and  is  therefore  duly  held  as  a  soldier,  they  may  be 
rebutted  in  this  resi)ect  by  proof  of  fraud  or  illegality  in  the 
enlistment  or  muster,  (on  the  part  of  the  representative  of 
the  United  States  or  otherwise,)  properly  invalidating  the 
proceeding  and  entitling  the  soldier  to  a  discharge.  VIII, 
488.  [But  that  the  entries  in  such  rolls  are  not  proof  of  the 
commission  of  an  offence,,  as  desertion  for  example,  see  Deser- 
tion §  3.] 

10.  General  Orders  issued  from  the  War  Department  or 
Headquarters  of  the  Army  may  ordinarily  be  proved  by 
printed  official  copies  in  the  usual  form,  without  resorting  to 

1  See  G.  C.  M.  0. 10,  Hdqrs.  ot  Army,  1879 ;  G.  O.  21,  Dept. 
of  the  Missouri,  18G3 ;  do.  17,  Dept.  of  Arkansas,  18G6 ;  do. 
19  Third  Mil.  Dist.  18(>7 ;  do.  49,  Dept.  of  Dakota,  1871. 

^  But  note  in  this  connection  the  ruling  of  the  Supreme 
Court  of  Massachusetts  in  the  late  case  of  Hanson  v.  S.  Scit- 
uate,  115  Mass.  33G,  that  an  official  certificate  from  the  Adju- 
tant General's  Office  to  the  effect  that  certain  lacts  appeared 
of  record  in  that  office,  but  Avhicli  did  not  purport  to  be  a 
transcript  from  the  record  itself,  and  was  therefore  si){i])ly  a 
personal  statement,  was  not  competent  evidence  of  such  facts. 

It  has  been  held  by  the  U.  S.  Suf^reme  Court  in  a  recent 
case — Evanston  v.  Gunn,  9  Otto,  GOO — tluit  the  record  made  by 
a  member  of  the  U.  S.  Signal  Corps,  of  the  state  of  the  weather 
and  the  direction  and  velocity  of  the  wind  on  a  certain  day, 
was  competent  evidence  of  the  facts  reported,  as  being  in 
the  nature  of  an  ofiicial  lecord  kept  by  a  public  officer  in  the 
discharge  of  a  public  duty. 


EVIDENCE.  257 

the  originals  or  to  formally  authenticated  written  copies.  The 
court  will  in  general  x>roperly  take  judicial  notice  of  the 
printed  order  as  genuine  and  correct.  A  court  martial,  how- 
ever, should  not,  in  general,  accei)t  in  evidence,  if  objected 
to,  a  printed  or  written  Special  Order,  (which  has  not  been 
made  public  to  the  army,)  without  some  proof  of  its  genuine- 
ness and  official  character.^    XV,  21G. 

11.  In  view  of  the  embarrassment  which  must  generally 
attend  the  proof,  before  a  court-martial,  of  the  sending  or 
receipt  of  telegraphic  messages  by  means  of  a  resort,  b}^  suh- 
pcena  duces  tecum,  to  the  originals  in  possession  of  the  Tele- 
graph Company,^  advised  that  the  written  or  j^rinted  copy, 
furnished  by  the  Company  and  received  by  the  person  to 
whom  it  is  addressed,  should  in  general  be  admitted  in  evi- 
dence by  a  court  martial  in  the  absence  of  circumstances 
casting  a  reasonable  doubt  upon  its  genuineness  or  correctness. 
But  where  it  is  necessary  to  prove  that  a  telegram  which  was 
not  received,  or  the  receipt  of  which  is  denied  and  not  proven, 
was  actually  duly  sent,  the  operator  or  proper  official  of  the 
Comi)any,  or  other  person  cognizant  of  the  fact  of  sending, 
should  be  summoned  as  a  witness.     Y,  458  j  XIV,  259. 

12.  The  fact  that  a  party  is  a  public  enemy  of  the  United 
States  or  has  engaged  in  giving  aid  to  the  enemy,  does  not 
aft'ect  the  competency  of  his  testimony  as  a  witness  before  a 
court-martial.  Where  testifying,  however,  in  time  of  war, 
either  in  favor  of  a  person  in  the  enemy's  service  or  an  ally 
of  or  sympathizer  with  the  enemy,  or  against  a  federal  officer 
or  soldier,  his  statements,  (like  those  of  an  accomphce^)  are 
ordinarily  to  be  received  with  caution  unless  corroborated. 
IX,  164,  173  5  X,  330;  XIII,  499 ;  XIV,  045;  XX,  86;  XXI, 
54.  The  fact  that  a  party  is  under  a  political  disability  is  not 
one  which  goes  to  his  competency  if  offered  as  a  witness. 
XI,  560.     So,  the  fact  that  a  witness  has  been  convicted  of 

^  See  a  similar  ruling  in  G.  0. 121,  Second  IVIilitary  District, 
1867. 

^  The  subject  of  the  extent  of  the  authority  of  the  courts 
to  compel  telegraph  companies  to  i)roduce  original  private 
telegrams  for  use  in  evidence  is  most  fully  treated  in  an  Essay 
by  Henry  Hitchcock,  Esq.,  on  the  "  Inviolability  of  Tele- 
grams," published  in  the  Southern  Law  Keview  for  Octobeij 
1879. 

17  D 


258  EYIDENCE. 

desertion  may  impair  Ms  credibility,  but  cannot  affect  his 
competency.     XX,  306. 

13.  A  confession  is  competent  evidence  when  free  and  vol- 
untary :  otherwise  where  made  through  the  influence  of  hope 
or  fear.^  So  where  an  officer  admitted  to  a  superior  in 
writing,  the  commission  of  a  military  offence  and  promised 
not  to  repeat  the  same,  under  the  well-founded  hope  and  belief 
that  a  charge  which  had  been  preferred  against  him  therefor 
would  be  withdrawn,  held  that,  in  case  he  were  actually  brought 
to  trial  upon  such  charge,  the  admission  thus  made  would 
not  properly  be  received  in  evidence,  against  his  objection. 
XLII,  ^00.  Confessions  made  by  x^rivate  soldiers  to  officers 
or  non  commissioned  officers,  though  not  shown  to  have  been 
made  under  the  influence  of  i)romise  or  threat,  should  yet,  in 
view  of  the  military  relations  of  the  parties,  be  received  with 
caution.^  XX,  26.  Mere  silence  on  the  part  of  the  accused, 
when  questioned  as  to  his  supposed  offence,  is  not  to  be 
treated  as  a  confession.^    XII,  44. 

14.  The  testimony  of  an  accused  party  is  competent  only 
when  presented  as  authorized  by  the  Act  of  Mch.  16,  1878,  c. 
37,  viz.  when  the  party  himself  requests  to  be  admitted  to  tes- 
tify. But  such  testimony  is  not  excepted  from  the  ordinary 
rules  governing  the  admissibility  of  evidence,  nor  from  the 
application  of  the  usual  tests  of  cross  examination,  rebuttal, 
&c.*    XXXIX,  506.     [See  Witness  §  2,  3.J 

15.  It  is  in  general  competent,  on  trials  by  court  martial, 
for  the  accused  to  put  in  evidence  any  facts  going  to  extenu- 
ate the  offence  and  reduce  the  punishment :  as  the  fact  that 
he  has  been  held  in  arrest  or  confinement  an  unusual  period 
before  trial  j  the  fact  that  he  has  already  been  subjected  to 
punishment  or  special  discipline  on  account  of  his  offence ) 

^United  States  v.  Pumphreys,  1  Granch  0.  C.  74;  United 
States  V.  Hunter,  Id.  317 ;  United  States  v.  Charles,  2  Id.  76 ; 
United  States  v.  Pocklington,  Id.  293 ;  United  States  v.  Xott, 
1  McLean  499 ;  United  States  v.  Cooper,  3  Qu.  L.  J.  42. 

^See  G.  C.  M.  O.  3,  War.  Dept.  1876;  G.  O.  54,  Dept.  of 
Dakota,  1867.     And  compare  Cady  v.  State,  44  Miss.  332. 

^  See  Cami^bell  v.  State,  55  Ala.  80. 

'  See  G.  C.  M.  O.  8,  16,  Dept.  of  the  Platte,  1879 ;  do.  6, 
Id.  1880;  do.  34,  Dept.  of  Texas,  1879.  And  compare  Wheel- 
den  t".  Wilson,  44  Maine,  11;  Marx  v.  People,  C)S  Barb.  618; 
Bralich  v.  People,  65  Id.  48 ;  People  v.  McGungill,  41  Cal. 
429;  Clark  v.  State,  50  Ind.  514. 


EXTRADITION.  259 

the  fact  that  his  act  was  in  a  measure  sanctioned  by  the  act 
or  practice  of  superior  authority,  &c.  XXYIII,  104 ;  XXIX, 
199.    [See  Sixtieth  Article  §  12;  Order,  I  §  6.] 

See  ACCOMPLICE. 

COURT  MARTIAL,  I  $  9,  10. 

DRUNKENNESS. 

OFFICIAL  PAPERS. 

PERJURY  ^  2. 

PLEA  §  1-6. 

REVISION  $  5. 

STATEMENT. 


EXTRADITION. 

By  Art.  II  of  the  extradition  treaty  with  Mexico  of  Dec. 
11,  1861,  it  is  stipulated  that : — "  In  the  case  of  crimes  com- 
mitted in  the  frontier  States  or  Territories  of  the  two  con- 
tracting parties,  requisitions  may  be  made  through  their 
respective  diplomatic  agents,  or  through  the  chief  civil 
authority  of  said  States  or  Territories,  or  through  such  chief 
civil  or  judicial  authority  of  the  districts  or  counties  border- 
ing on  the  frontier  as  may  for  this  purpose  be  duly  author- 
ized by  the  said  chief  civil  authority  of  the  said  frontier  States 
or  Territories,  or  when,,f^om  any  cause,  the  civil  authority  of 
such  State  or  Territory  shall  be  suspended,  through  the  chief 
military  officer  in  command  of  such  State  or  Territory."  So 
where  a  United  States  soldier  charged  with  having  committed 
a  crime  against  the  laws  of  Mexico,  was  held  in  military  cus- 
tody within  the  State  of  Texas,  advised,  (July,  1876,)  that  as 
a  requisition  by  the  Mexican  government  directly  upon  the 
military  commander  in  Texas  would  not  be  authorized,  such 
commander  would  not  be  justified  in  taking  action  upon  an 
application  for  such  surrender,  and  that  any  application  made 
through  him  would  properly  be  transmitted  to  the  Secretary  of 
War  to  be  referred  to  the  State  Department.    XXXYIII,  118. 

2.  The  extradition  treaty  between  the  United  States  and 
Mexico  provides  that  "  when  from  any  cause  the  civil  author- 
ity" of  a  frontier  State,  &c.  of  either  nation,  "shall  be  sus- 
pended," the  requisition  shall  be  made  "through  the  chief 
militar}^  officer  in  command  of  such  State,"  &c.  A  criminal 
having  escaped  into  Mexico  from  Texas  at  a  time  when  the 
civil  authority  of  that  State  was  suspended  as  a  result  of  the 


2C0  EXTRA  DUTY  PAY. 

late  war,  a  requisition  for  him  was  issued  not  by  the  officer 
commanding  in  the  State  but  by  a  subordinate  of  inferior 
rank.  Held  that  as  such  action  was  clearly  unauthorized,  the 
Mexican  government  was  justified  in  refusing  to  comply  with 
the  requisition,  and  that  a  new  one  should  accordingly  be 
made  by  the  proper  commander.    XXIX,  4. 

EXTRA  DUTY  PAY. 

[Act  of  July  13,  1866,  c.  176,  s.  7— now  Sec.  1287,  Eev.  Sts.] 

1.  This  statute  authorizes  the  payment  to  soldiers  "  working 
as  artificers"  of  thirty-five  cents  "j9er  day^^''  in  addition  to  their 
regular  pay.  The  ^^day,"  in  a  legal  sense,  consists  of  twenty- 
four  hours,  and  it  is  not  practicable  to  make  two  working  days 
out  of  this  period  of  time,  so  as  to  justify  a  double  payment 
under  the  act.  So  lield  that  a  soldier,  who  did  extra  duty  as 
an  artificer  at  the  West  Point  Military  Academy  l)otli  night 
mid  day,  was  not  entitled  to  a  double  compensation  therefor. 
XXYI,  276. 

2.  Held,  (July,  1876,)  that  enlisted  men  of  the  signal  serv- 
ice, while  employed  in  constructing  and  working  telegraph 
lines,  and  in  observing  and  reporting  storms  and  making  re- 
ports for  the  benefit  of  agriculture  and  commerce  might  prop- 
erly be  classed  as  "artificers"  within  the  meaning  of  the  Act 
of  1866,  and  paid  accordingly.^     XXXYIII,  184. 

3.  Held  that  enlisted  men  detailed  as  '^packers"  or  '^ chief 
packers"  could  scarcely  be  regarded  as  entitled  to  the  extra 
allowance  of  thirty  five  cents  per  day  as  "artificers,"  but 
might  legally  be  paid  the  allowance  of  twenty  cents  per  day 
as  "laborers,"  in  addition  to  their  regular  pay  as  soldiers. 
XXXYI,  530. 

4.  In  view  of  the  interi)retation  by  successive  Attorneys 
General/  of  the  term  "  other  constant  labor,"  emjjloyed  in  the 
Act  of  March  2,  1819,  (the  original  of  the  provision  of  July 

^  Under  the  subsequent  Act,  however,  of  June  20,  1878, 
reposing  in  the  Secretary  of  War  a  special  discretion  on  the 
subject,  the  right  to  the  extra-duty  pay  has  been  restricted 
to  a  certain  i:)ortion  of  this  class  of  soldiers.  See  G.  O.  54, 
Hdqrs.  of  Army,  1878. 

'  II  Opins.  of  Attys.  Gen.  700 ;  III  Id.  116 ;  lY  Id.  325.  And 
see  also  X  Id.  472. 


EXTRA  PAY.  2G1 

13,  1SG6,)  as  including  clerical  service,  and  of  the  continued 
practice  of  the  government  in  accord  with  such  interpretation, 
held  that  enlisted  men  detailed  as  clerks  of  courts  martial 
might  properly  be  regarded  as  entitled,  for  constant  labor  as 
such  "of  not  less  than  ten  days'  duration,"  to  the  extra  duty 
pay  of  twenty  cents  ])er  diem.  XXXYII,  297 ;  XLII,  545. 
But  lieldj  in  view  of  the  positive  prohibition  of  Sec.  1765,  Eev. 
Sts.,  that  a  soldier  could  not  legally  be  allowed  any  additional 
compensation  for  such  service  further  or  other  than  such 
laborer's  payj  and  this  although  at  the  time  of  acting  as  clerk 
he  was  on  a  leave  of  absence.  XLII,  564. 
See  forfeiture,  II  $  4. 

EXTRA  PAY. 

(Fnder  the  Act  of  March  3,  1865,  c.  81,  s.  4.) 

Under  this  statute,  by  which  "officers  of  volunteers"  in 
commission  at  its  date  and  continuing  in  service  to  the  end 
of  the  war  were  granted  three  months'  extra  pay,  held  that  a 
certain  volunteer  officer  duly  mustered  out  at  the  end  of  the 
war  was  entitled  to  this  extra  allowance,  although,  when 
mustered  out,  he  was  under  a  sentence  of  forfeiture  of  pay 
for  three  months;  this  sentence  having  been  evidently  in- 
tended to  atfect  his  ordinary  pay  and  not  the  gratuity  accorded 
by  the  Act.  XXY,  545.  But  held  that  an  officer  of  volunteers 
mustered  out,  not  by  reason  of  the  cessation  of  hostilities  at 
the  end  of  the  war,  but  for  the  purpose  of  enabling  him  to 
accept  a  commission  in  the  regular  army,  was  not  entitled  to 
the  extra  pay.^  XXI,  502.  And  held  that  a  medical  store- 
keeper, appointed  under  the  Act  of  May  20,  1862,  and  mus- 
tered out  at  the  end  of  the  war,  was  not  entitled  to  the  said 
extra  pay,  he  having  been  not  an  officer  of  volunteers,  but, 
though  his  tenure  of  office  was  limited  to  the  period  of  the 
war,  an  officer  of  the  regular  army.  XXXI V,  459.  [See 
Regular  Army.] 

^  Compare  Merrill  v.  United  States,  9  Wallace,  614. 


262  FELONY — ^FINDING. 


F. 


FELONY. 

See  military  OFFENCE. 

FIELD  OFFICER'S  COURT. 

See  eightieth  ARTICLE. 

FINDING. 

1.  The  finding  of  the  court  should  be  governed  by  the  evi- 
dence, considered  in  connection  with  the  plea.  Where  no 
evidence  is  introduced,  the  general  rule  is  that  the  finding 
should  conform  to  the  plea.    XXXYII,  409;  XXXYIII,  188. 

2.  The  finding  on  the  charge  should  be  supported  by  the 
finding  on  the  specification,  (or  specifications,)  and  the  two 
findings  should  be  consistent  with  each  other.  A  finding  of 
guilty  on  the  charge  would  be  quite  inconsistent  with  a  find- 
ing of  not  guilty,  or  guilty  without  attaching  criminality,  on 
the  specification.  So,  a  finding  of  guilty  upon  a  well  pleaded 
specification,  apposite  to  the  charge,  followed  by  a  finding  of 
not  guilty  either  of  the  ofi'ence  charged  or  some  lesser  ofl:ence 
included  in  it,  (see  §  8  infra,)  would  be  an  incongruous  verdict. 
IV,  275.  Xo  matter  how  many  specifications  there  may  be, 
it  requires  a  finding,  of  guilty  or  not  guilty,  on  but  one  speci- 
fication, (apposite  to  the  charge,)  to  support  a  similar  finding 
uj)on  the  charge.     IX,  90. 

3.  There  should  be  a  separate  and  independent  finding  upon 
each  charge  and  specification,  and  each  separate  finding  should 
cover  the  charge  or  specification  as  to  which  it  is  made ;  so 
that  if  any  charge  or  specification  is  deemed  by  the  court  to 
be  proved  only  in  part,  the  finding  shall  show  specifically 
what  is  found  to  be  proved  and  what  not.  VII,  236 ;  XVI, 
73.     [See  §  4  infra.] 


FINDING.  263 

4.  It  is  a  peculiarity  of  the  Finding  at  military  law,  tliat  a 
court  martial,  where  of  opinion  that  any  portion  of  the  alle- 
gations in  a  specification  is  not  proved,  is  authorized  to  find 
the  accused  guilty  of  a  part  of  a  specification  only,  excepting 
the  remainder;  or,  in  finding  him  guilty  of  the  whole,  (or  any 
part,)  to  suhstitute  correct  words  or  allegations  in  the  i)lace 
of  such  as  are  shown  by  the  evidence  to  have  been  inserted 
through  error.  And  provided  the  exceptions  or  substitutions 
leave  the  specification  still  appropriate  to  the  charge  and 
legally  sufficient  thereunder,  the  court  may  then  properly  find 
the  accused  guilty  of  the  charge  in  the  usual  manner.  XXIII, 
188. 

[As  to  the  proceeding  in  a  case  of  a  finding  of  a  lesser  in- 
cluded ofl'ence,  requiring  an  exception  and  substitution  in  the 
charge  as  well  as  in  the  specification,  see  §  8  infra.] 

5.  It  is  not  competent  for  a  court-martial  to  find  an  accused 
not  guilty  of  the  specification,  and  yet  guilty  of  the  charge, 
where  there  is  but  one  specification.  By  finding  him  not 
guilty  of  the  specification  they  acquit  him  of  aU  that  goes  to 
constitute  the  offence  described  in  the  charge.  Where  the 
court  believe  that  the  accused  is  guilty  of  the  charge,  but  not 
precisely  as  laid  in  the  specification,  they  should  find  him 
guilty  of  the  latter,  but  with  such  exceptions  or  substitutions 
as  may  be  necessary  to  present  the  facts  as  i^roved  on  the 
trial,  and  then  guilty  of  the  charge.    Y,  576. 

6.  Familiar  instances  of  the  exercise  of  the  authority  to 
except  and  substitute  in  a  finding  of  guilty  occur  in  cases  where, 
in  the  specification,  the  name  or  rank  of  the  accused,  or  some 
other  person,  is  erroneously  designated,  or  there  is  an  errone- 
ous averment  of  time  Or  place,  or  a  mistaken  date,  or  an  in- 
correct statement  as  to  amount,  quantity,  quality,  or  other 
particular,  of  funds  or  other  i^roperty,  &c.  XIII,  39S,  102; 
XIY,  228;  XXYI,  435. 

7.  In  finding  guilty  ui^on  a  specification, — to  except  fi'om 
such  finding  the  word  or  words  which  express  the  gravamen 
of  the  act  as  charged  and  found,  is  contradictory  and  irregu- 
lar. As — from  a  finding  of  guilty  on  a  specification  to  a 
charge  of  fraud  under  Art.  GO,  to  specially  except  the  word 
*' fraudulent"  or  "fraudulently,"  while  at  the  same  time  find- 
ing the  accused  guilty  generally  upon  the  charge.  XI,  41, 
44,  81.    [See  Fifty  Fifth  Aeticle  §  2.J 


264  FINDINa. 

8.  The  practice  of  making  exceptions  and  substitutions  in 
the  findings  is  well  illustrated  by  the  finding — authorized  at 
military  law  when  called  for  by  the  evidence  ^ — of  a  lesser  Icin- 
dred  offence  included  as  a  constituent  element  in  the  specific 
offence  charged.^  Of  this  form  of  verdict  the  most  familiar 
instance  is  the  finding  of  guilty  of  absence-without-leave 
under  a  charge  of  desertion.  A  full  acquittal  of  desertion 
includes,  of  course,  an  absence  without  leave  involved  in  it  j 
but  where  the  evidence  falls  short  of  establishing  a  desertion 
but  shows  an  unauthorized  absenting  of  himself  by  the  ac- 
cused, he  may  and  should,  be  convicted  of  absence-without- 
leave,  as  his  actual  offence.  In  arriving  at  this  conclusion, 
the  findings  on  the  specification  and  charge  should  be  con- 
sistent, and  the  finding  on  the  former  should  be  such  as  to 
support  the  latter.  In  their  finding  of  guilty  ui)on  the  speci- 
fication, the  court  should  in  terms  except  from  its  application 
such  words  of  the  specification  as  allege  or  describe  desertion 
exclusively,  and  substitute  words  describing  the  lesser  offence; 
the  words  "  did  desert,"  for  example,  being  excepted,  and  the 
words  "did  absent  himself  without  authority"  being  substi- 
tuted. The  finding  on  the  charge  should  regularly  be  "  not 
guilty,  but  guilty  of  absence-without-leave."  ^  YII,  357,  616, 
634;  IX,  24,  26,  46,  49 ;  XIII,  655;  XXIV,  242. 

9.  But  the  authority  to  find  guilty  of  a  minor  included 
offence,  or  otherwise  to  make  exceptions  or  substitutions  in 
the  finding,  cannot  justify  the  conviction  of  the  accused  of 
an  offence  entirely  separate  and  distinct  in  its  nature  from 
that  charged.  Thus  Jield  that  it  was  not  a  finding  of  a  lesser 
included  offence  to  find  the  accused  guilty  merely  of  absence- 
without-leave  under  a  charge  of  a  violation  of  the  42d  Arti- 
cle of  War  in  abandoning  his  post  before  the  enemy.  XI, 
274.  And  so  held  of  a  finding,  under  a  charge  of  a  violation 
of  Art.  39,  of  not  guilty  but  guilty  of  a  violation  of  Art.  40. 

igee  XIII  Opins.  of  Attys.  Gen.  460. 

^  Compare  Reynolds  v.  People,  83  Ills.  479,  and  note  the 
similar  authority  given  in  criminal  cases  in  the  United  States 
courts,  by  Sec.  1035,  Eev.  Sts. 

^  A  simple  finding,  however,  of  guilty  of  absence  without 
leave,  though  an  irregular  form,  would  amount  in  law  to  an 
acquittal  of  the  higher  offence  charged.  Compare  Morehead 
V.  State,  34  Ohio  St.  212 ;  and  see  Desertion  §  18. 


FmDma.  265 

XI,  276.  So,  where  a  soldier  charged  with  ^^  conduct  to  the 
prejudice  of  good  order  and  mihtary  discipline,"  in  conceal- 
ing the  fact  that  a  fellow  soldier  had  appropriated  to  his  own 
use  certain  i^ublic  property,  was  found  not  guilty  of  the  speci- 
fication as  laid,  but  guilty  of  "  having  stolen  the  property 
himself,"  and  guilty  of  the  charge,  and  was  accordingly  sen- 
tenced to  imprisonment, — held  that  such  a  finding  was  man- 
ifestly unauthorized.  Having  been  found  not  guilty  of  the 
offence  set  forth  in  the  specification  and  which  alone  he  was 
called  upon  to  answer,  he  should  have  been  acquitted  on  both 
charge  and  specification  :  the  offence  of  which  he  was  found 
guilty  was  not  alleged  against  him,  and  not  being  included 
in  that  charged,  could  not  properly  form  the  subject  of  a 
finding.  The  remission  of  his  sentence  therefore  recommended, 
XXXIV,  569. 

10.  It  is  a  further  peculiarity  of  the  Finding  at  military 
law  that,  where  an  accused  is  charged  with  "  conduct  unbe- 
coming an  officer  and  a  gentleman,"  or  with  any  specific 
offence  made  punishable  by  the  Articles  of  war,  and  the 
court  is  of  opinion  that  while  the  material  allegations  in  the 
specification  or  specifications  are  substantially  made  out,  they 
do  not  fully  sustain  the  charge  as  laid,  but  do  clearly  estab- 
lish the  commission  of  a  neglect  ol  military  duty  or  a  disorder 
in  breach  of  military  discipline,  as  involved  in  the  acts 
alleged,  the  accused  may  properly  be  found  guilty  of  the 
specification,  (or  specifications,)  and  not  guilty  of  the  charge 
but  guilty  of  '''•conduct  to  the  prejudice  of  good  order  and  mili- 
tary disciplineP  [See  §  12  infra.]  Such  a  form  of  finding  is 
now  common  in  our  practice,  (esi)ecially  where  the  charge  is 
laid  under  Art.  61,)  and  its  legality  is  no  longer  questioned. 
Y,  265  5  IX,  656  ;  XI,  87  ;  XXIX,  299. 

11.  The  authority  thus  to  find,  however,  has  not  been  ex- 
tended beyond  the  cases  indicated  in  the  last  paragraph : 
the  reverse.,  for  examj)le,  of  this  form  of  finding,  has  never 
been  sanctioned.  A  finding  of  guilty  of  a  certain  specific 
offence,  under  a  charge  of  another  specific  offence,  or  under 
a  charge  of  ''conduct  unbecoming  an  officer  and  a  gen- 
tleman" or  of  "conduct  to  the  prejudice  of  good  order 
and  military  discipline,"  would  be  wholly  irregular  and  in- 
valid.   Thus  a  finding  of  guilty  of  disobedience  of  orders, 


266  FINDING. 

(or  of  a  violation  of  Art.  21,)  under  a  charge  of  mutiny  in 
violation  of  Art.  22,  or  a  finding  of  drunkenness  on  duty,  (or 
of  a  violation  of  Art.  38,)  under  a  charge  for  a  drunken  dis- 
order laid  under  Art.  62  or  61,  would  be  not  only  unauthor- 
ized but  now  almost  unprecedented,  and,  if  such  a  finding 
were  made,  it  could  scarcely  fail  to  be  formally  disapproved. 
And  so  of  a  finding  of  "conduct  unbecoming  an  officer  and 
a  gentleman"  under  a  charge  of  '^  conduct  to  the  prejudice  of 
good  order  and  military  discipline."    XI,  274  j  XYI,  532. 

12.  The  general  finding  of  ''  conduct  to  the  prejudice,"  &c., 
in  the  cases  indicated  in  §  10,  is  sanctioned  in  order  to  pre- 
vent a  failure  of  justice,  not  for  the  purpose  of  relieving  the 
accused  of  any  of  his  due  share  of  culi>ability.  It  should  not 
therefore  be  resorted  to  where  the  specific  offence  charged  is 
substantially  made  out  by  the  testimony.  Thus  in  a  case 
where  the  facts  set  forth  in  the  specification  to  a  charge  of 
"conduct unbecoming  an  officer  and  a  gentleman,"  and  clearly 
established  by  the  evidence,  fixed  unmistakably  upon  the 
accused  dishonorable  behavior  comi>romising  him  officially 
and  socially, — held  that  a  finding  by  the  court  that  he  was 
guilty  only  of  "conduct  to  the  prejudice  of  good  order  and 
militarj^  discipline"  should  not  be  accepted,  but  that  the 
court  should  be  reconvened  for  the  purpose  of  inducing,  if 
practicable,  a  finding  in  accordance  with  the  facts  and  with 
justice.     XXX,  495. 

13.  Where,  upon  the  finding,  the  vote  on  a  charge  or  spec- 
ification is  tied^  the  accused  is,  in  law,  found  not  guilty 
thereon ;  a  majority  vote  being  necessary  to  any  conviction. 
XXXI,  610  ;  XXXII,  126.  A  statement  in  the  record  to  the 
effect  that  the  vote  upon  a  specification,  &c.,  was  a  tie  and 
that  the  accused  was  therefore  acquitted,  is  of  course  irregu- 
lar and  imi)roper.  XXXII,  126.  [As  to  the  irregularity  and 
offence  involved  in  stating  a  finding  as  unanimous^  see  Eighty 
FouKTH  Article  §  3.] 

14.  It  is  an  important  part  of  the  judgment  of  the  court,  in 
a  case  where  the  evidence  is  conflicting,  to  determine  the 
measure  of  the  credibility  to  be  attached  to  the  several  wit- 
nesses. In  its  finding,  therefore,  the  court  may,  in  connection 
with  the  testimony,  properly  take  into  consideration  the  ap- 
pearance and  deportment  of  the  witnesses  on  the  stand,  and 


FINE.  267 

their  maimer  of  testifying  especially  when  under  cross-exam- 
ination. '    XXX,  383,  447. 

See  THIRTY  EIGHTH  ARTICLE  $  7. 
NINETY  SIXTH  ARTICLE  $  1. 
RECORD  $  1,  i. 

SENTENCE  AND  PUNISHMENT  $  5. 
VOTE  OF  THE  COURT. 


FINE. 

1.  The  only  fine  known  to  military  law  is  the  fine  author- 
ized to  be  imposed  by  way  of  punishment  by  sentence  of  court 
martial.  Xo  military  commander  is  empowered  under  any 
circumstances  to  impose  a  fine  upon  an  officer  or  a  soldier. 
VIII,  444.    [See  Fifty  Fguiith  Article  §  2,  G.] 

2.  A  fine  is  distinguished  from  a  "  stoppage."  The  former 
is  a  punishment  and  therefore  imposable  onlj^  by  court  martial. 
The  latter  is  a  charge  on  account,  being  an  enforced  reimburse- 
ment, by  means  of  a  debit  entered  against  the  pay  of  the  party 
on  the  rolls,  either  for  an  amount  due  the  United  States, — 
as  for  the  value  of  public  property  lost,  £xtra  clothing  issued, 
reward  paid  for  apprehension  as  a  deserter,  &c. ;  or  for  an 
amount  due  an  individual  and  expressly'  authorized  by  law  or 
regulation  to  be  thus  charged, — as  the  stoppage  in  favor  of  the 
laundress,  and  that  authorized  for  the  *' reparation"  of  a  civi- 
lian by  the  54th  Article  of  War.  [See  par.  1363,  Army  Reg- 
ulations ;  Fifty  Fourth  Article  §  2.J  Any  stoppage  in- 
deed, to  be  legally  executed,  must  be  specifically  enjoined  by 
statute  or  authorized  regulation.    XXXY,  457. 

3.  Fines  adjudged  by  courts  martial  accrue  to  the  United 
States.  A  court  martial  cannot  impose  a  fine  for  the  benefit 
of  an  individual,  nor  can  a  fine  adjudged  in  general  terms  be 
in  any  part  appropriated  for  the  benefit  of  an  individual  by 
executive  authority.    YII,  52,  643;  YIII,  632.      [Compare 

^  See  Eeyiewing  Authority  §  5,  and  compare  Callanan 
V.  Shaw,  24  Iowa,  441. 

That  a  court  cannot  arbitrarily  disbelieve  and  reject  from 
consideration  the  statement,  duly  in  evidence,  of  a  witness, 
not  clearly  shown  to  have  perj  ured  himself,  is  held  in  the 
recent  case  of  Evans  i?.  George,  SO  Ills.  51. 


268  FINE. 

FoRFEiTUREj  II  §  5.]  A  court  martial,  in  sentencing  a  party 
to  pay  a  fine,  has  no  autliority  to  direct  the  collection  of  the 
same  by  a  provost  marshal,  or  by  any  compulsory  process : 
such  a  direction  added  in  a  sentence  should  be  disregarded  as 
mere  surplusage,    YIII,  298. 

4.  An  officer  on  trial  apj)lied  to  have  certain  witnesses 
summoned  from  a  distance  and  a  continuance  granted  to 
await  their  appearance.  To  this  the  court  consented  on  his 
making  an  affidavit  setting  forth  material  matter  expected  to 
be  established  by  the  witnesses.  When  these  ai)peared  it  was 
found  that  they  could  give  no  material  testimony  upon  the 
points  indicated  in  the  affidavit.  The  court,  in  making  up  its 
sentence  upon  conviction,  proposed  to  impose  upon  the  ac- 
cused, (in  connection  with  imprisonment,)  a  fine  of  two  hun- 
dred dollars  as  the  estimated  cost  to  the  government  of  pro- 
curing the  attendance  of  the  said  witnesses.  Advised  that 
the  facts  stated  did  not  constitute  a  proper  basis  for  the  im- 
position of  such  fine  as  a  i)unishment  for  the  offence  for  which 
the  officer  was  convicted ;  that  if  his  conduct  in  the  matter 
was  deemed  so  culpable  as  to  constitute  a  military  offence,  it 
should  be  made  the  subject  of  a  separate  charge  to  be  inves- 
gated  on  a  separate  trial.    XXIX,  329. 

5.  Where  an  officer,  sentenced,  (in  connection  with  dis- 
missal,) to  the  payment  of  a  fine  and  to  imprisonment  till  the 
fine  was  paid,  and  held  for  some  time  in  confinement  by  rea- 
son of  the  non-payment  of  the  fine,  applied  to  be  released  on 
the  ground  that  he  was  quite  destitute  of  means  and  incapa- 
ble of  satisfying  the  amount  of  the  fine,  suggested  that,  in 
order  to  protect  the  government  from  fraud,  the  procedure 
prescribed  by  Sec.  1042,  Eev.  Sts.  in  cases  of  "  poor  convicts,'^ 
imprisoned  under  sentences  of  United  States  courts,  be  in 
substance  followed,  and  that  the  prisoner  be  not  released  ex- 
cept upon  an  investigation  as  to  his  pecuniary  ability  by  a 
proper  officer,  and,  if  found  to  be  indigent  as  represented, 
upon  his  written  statement  under  oath  that  he  was  wholly 
incapable  of  paying  or  procuring  the  means  to  pay  any  part 
of  the  fine.    XXXIV,  329. 

See  IMPEISONMENT  $  4. 


FLAG  OF  TRUCE — FOREIGN  SERVICE.  269 


FLAG  OF  TRUCE. 

The  use  of  flags  of  truce  by  tlie  enemy  during  the  late  war 
was  recognized  as  a  belligerent  right. ^  But  the  admission  by 
flag  of  truce  within  the  lines  of  the  TJ.  S.  army  in  time  of 
war  of  persons  coming  from  the  lines  of  an  enemy,  cannot 
entitle  such  persons  to  immunity  from  subsequent  inquiry 
into  their  character  and  business,  or  from  restraint  and  deten- 
tion upon  reasonable  grounds  of  suspicion  appearing  against 
them.  Moreover  a  flag  of  truce  does  not  operate  as  a  safe- 
conduct^  allowing  the  party  admitted  under  it  a  free  passage 
through  the  territory  or  a  dispensation  from  the  legal  effects 
of  war,  but  affords  him  a  merely  temjiorary  protection  not 
to  be  continued  after  the  immediate  mission  of  the  flag  has 
been  accomplished.  Y,  03;  YI,  434;  YIII,  612.  So  held 
that  a  person  who,  during  the  war,  availed  himself  of  a  flag 
of  truce  to  enter  our  lines  for  an  illegal  i)uri)ose,  was  in  no 
degree  protected  by  the  flag  from  liability  to  arrest,  upon  his 
purpose  becoming  apparent,  or  from  amenability  to  trial  and 
jDunishment  for  any  overt  act  in  violation  of  the  laws  of  war. 
XIX,  673. 


FOREIGN  SERVICE. 

In  the  absence  of  express  authority  from  Congress,  an  offi- 
cer of  the  army  cannot  accept  remuneration  from  a  foreign 
l^ower,  in  return  for  military  or  other  public  service  rendered, 
without  a  violation  of  Art.  I,  Sec.  9,  x)ar.  7,  of  the  Constitu- 
tion.2  ]Sor  can  such  an  officer,  (in  the  absence  of  such 
authority,)  properly  be  granted  a  leave  of  absence  for  the 
l)urpose  of  rendering  foreign  service,  even  without  comi)ensa- 

^  Williams  v.  Bruffy,  6  Otto,  187. 

2  Xote  in  this  connection  the  opinion  of  the  Attorney  Gen- 
eral of  January  20, 1877,  (XY  Opins.  — ,)  to  the  eflect  that  the 
Centennial  Commissioners  appointed  by  the  President  under 
the  Act  of  March  3,  1871,  were  officers  of  the  United  States, 
holding  offices  of  trusty  (though,  in  the  abseuce  of  salary,  not  of 
l^rofit^)  and  that  therefore,  in  view  of  the  prohibition  of  xVrt. 
I,  Sec.  9  §  7  of  the  Constitution,  they  could  not,  without  the 
authority  of  Congress,  legally  accept  presents  from  a  foreign 
government. 


270  FORFEITUBE. 

tion,  since  such  a  proceeding  would  be  contrary  to  the  spirit 
and  intent  of  the  laws  relating  to  the  army,  which  clearly 
contemplate  that  the  services  of  its  officers  shall  be  rendered 
to  the  United  States.    XXXYII,  448. 

FORFEITURE,  I— BY  OPERATION  OF  LAW. 

1.  The  forfeitures  of  pay,  &c.,  incurred  by  deserters  under 
pars.  1357  and  1358,  Army  Eegulations,  (see  Desertion  §  9,) 
need  not  be  adjudged  in  the  sentence  imposed  upon  the  of- 
fender.^ Snch  forfeitures  attach  by  operation  of  law  inde- 
pendently of  conviction  or  sentence,  and  any  reference  to  the 
same  in  the  sentence  by  the  court  must  be  suriilusage.  YII, 
207. 

2.  A  forfeiture  by  operation  of  law  cannot  be  the  subject 
of  remission.  XXXII,  390.  An  amount  duly  forfeited  by 
desertion  under  par.  1357  or  1358,  Army  Eegulations,  is,  in 
contemplation  of  law,  i^aid  into  the  Treasury,  and  cannot  be 
withdrawn  except  by  the  authority  of  Oengress.  XXXYIII, 
618. 

See  pay  AND  ALLOWANCES  $  8,  9. 

FORFEITURE,  II— BY  SEI^TEHCE. 

1.  A  court  martial,  in  forfeiting  pay  by  sentence,  should  so 
fix  the  amount  to  be  forfeited  that  the  same  will  clearly  and 
unmistakably  appear  from  the  sentence  itself,  without  a 
reference  to  any  order  or  other  source  of  information  being* 
necessary.  So  held  that  a  sentence  which  required  a  soldier 
to  forfeit  an  amount  of  i)ay  sufficient  to  reimburse  the  United 
States  for  the  value  of  certain  property  apju^opriated  by  him, 
without  fixing  the  value  of  such  i)roperty,  was  irregular,  and 
might  properly  be  disapj)roved  unless  corrected  by  the  court 
on  being  reassembled  for  a  revision.^  XXYII,  186. 

2.  Pay  cannot  be  forfeited  by  imj)lication.  If  the  court 
intends  to  forfeit  pay,  the  penalty  of  forfeiture  should  be 
adjudged  in  express  terms  in  the  sentence.^  No  o^/ier  punish- 
ment, imposable  by  court  martial — neither  a  sentence  of 
death,  dismissal,  suspension,  dishonorable  discharge,  nor 
imi^risonment — involves  j)Gr  se  a  forfeiture  or  dej)rivation  of 
any  part  of  the  pay  or  allowances  due  the  i^arty  at  the  time 

^  See  United  States  v.  Landers,  2  Otto,  79. 

2  Compare  case  in  G.  C.  M.  O.  (j5,  Dept.  of  Dakota,  1880. 

3  Compare  Elliott  v.  Eailroad  Co.,  9  Otto,  573. 


FORFEITUEE,  II — BY  SENTENCE.  271 

of  tlie  approval  or  taking  effect  of  the  sentence.^  Y.  409 ; 
XIII,  276;  XVI,  676;  XXYIII,  338;  XXX,  52;  XXXn, 
23G.  Xor  can  pay  be  forfeited  by  any  misconduct  of  a  sol- 
dier, however  grave,  (other  than  desertion  or  absence  without 
leave,)  unless  he  is  brought  to  trial  and  expressly  sentenced 
to  forfeiture  for  the  same.     XXXIX,  248. 

3.  A  sentence  forfeiting  "i)ay"  or  '^pay  and  bounty"  does 
not  affect  the  right  of  the  accused  to  a  i)ecuniary  '^  allowance j''^ 
— as  for  example,  an  allowance  due  him  for  clothing  not  drawn. 
XXI,  546. 

4.  A  forfeiture  by  sentence,  of  "  pay  and  allowances,"  while 
it  does  not  affect  the  right  of  the  soldier  to  receive  during  his 
term  of  enlistment  the  usual  allowance  of  clothing  in  kind, 
(See  Clothing  Allowance  §  2,)  forfeits  any  pecuniary 
allowance  that  may  be  due  the  soldier  on  account  of  cloth- 
ing not  drawn.  [But  see  Clothing  Allowance  §  l.J  And 
this  rule  applies  to  a  case  of  a  soldier  on  duty  as  a  "general 
service"  cjerk  equally  as  to  any  other  enlisted  man.  XLIII, 
110. 

A  sentence  of  forfeiture  of  "all  pay  and  allowances"  in- 
cludes and  forfeits  "  extra  duty  pay."    XXXIY,  446. 

5.  Pay  forfeited  by  sentence  of  court  martial  can  accrue  to 
the  United  States  only.  A  sentence  cannot  forfeit,  (appro- 
priate, or  "  stop,")  pay  for  the  reimbursement  or  benetit  of 
an  individual^  civil  or  military,  (post  trader  included — see 
Post  Tradek  §  5,)  however  justly  the  same  may  be  due 
him,  either  for  money  borrowed,  stolen,  or  embezzled  by  the 
accused,  or  to  satisfy'  any  other  iiecuniary  liability  of  the 
accused  whether  in  the  nature  of  debt  or  damages ;  nor  can 
a  sentence  forfeit  pay  for  the  support  or  benefit  of  the  family 

^  This  principle  is  well  illustrated  by  the  opinion  of  the 
Attorney  General,  (XIII  Opius.  103,)  concurring  with  an 
opinion  of  the  Judge  Advocate  General,  in  the  case  of  Major 
Herod,  where  it  was  held  that  the  fact  that  the  accused  had 
been  sentenced  to  death,  on  conviction  of  murder,  did  not 
affect  his  right  to  his  pay  from  the  date  of  his  arrest  to  that 
of  the  final  action  taken  on  the  sentence  by  the  President. 
And  seethe  more  recent  opinion  of  the  Attorney  General  of 
November  0,  1876,  (XY  Opins.  — ,)  to  the  effect  that  the  pay 
of  officers  and  seamen  of  the  navy  is  not  divested  by  the 
operation  of  sentences  of  imi)risonment  or  suspension,  but 
only  when  forfeited  in  specific  and  express  terms  in  the  sen- 
tence. 


272 

of  the  accused,  or  for  the  benefit  of  a  post  fund,  hospital  fund, 
&c.  All  forfeitures  by  sentence,  whether  or  not  so  expressed 
to  be  in  terms,  are  to  be  understood  and  treated  as  forfeitures 
to  the  United  States,  accruing  to  the  general  treasury.^  II, 
54:;  YI,  1775  IX,  9,  240,  257,  275;  XIII,  91,  549;  XYI,  322; 
XXYII,  422,  450;  XXIX,  535;  XXX,  54. 

6.  Where  a  sentence  imposes  a  forfeiture  of  the  ''  monthly '^ 
pay,  or  a  part  of  the  "monthly"  pay,  of  a  soldier,  for  a  desig- 
nated number  of  months,  the  sum  forfeited  is  the  amount  in- 
dicated multiplied  by  the  number  of  months.  Thus  where 
the  sentence  of  a  soldier  imposed  a  confinement  for  eight 
months  with  a  forfeiture  of  eight  dollars  of  his  monthly  pay 
for  the  same  period,  the  sum  forfeited  was  not  eight  but  sixty 
four  dollars.^    XXXIY,  173. 

7.  Where  the  sentence  is  confinement  for  a  certain  number 
of  months  or  years,  with  a  forfeiture  of  pay  "  for  the  same 
period,"  the  execution  of  the  forfeiture  properly  begins  and 
ends  with  the  term  of  tlie  confinement.    XXX,  500. 

8.  A  forfeiture  of  a  soldier's  pay,  not  limited  by  the  sen- 
tence to  the  pay  of  any  particular  designated  month  or  months 
or  other  space  of  time,  but  expressed,  as  such  forfeitures 
usually  are,  simply  as  a  forfeiture  of  a  certain  number,  (as 
three,  six,  «&c.,)  of  months'  pay  or  of  a  certain  amount  of 
pay,  (as  ten,  twenty  or  more,  dollars  of  his  pay,)  is  legally 
chargeable  against  the  pay  due  and  payable  to  the  soldier  at 
the  next  i:)ay  day  after  the  promulgation  of  the  approval  of 
the  sentence,  and,  if  no  pay  is  then  due  or  that  due  is  not 
sufficient  to  discharge  the  forfeiture,  against  the  pay  due  and 

^  Soldiers'  pay  forfeited  by  sentence  to  the  United  States 
was,  by  the  Act  of  March' 3,  1851,  (Sec.  4818,  Eev.  Sts.,) 
appropriated  for  the  support  of  the  Soldiers  Home.  This 
appropriation,  as  here  expressed,  is  o±^ — "All  stoppages  or 
fines  adjudged  against  soldiers  by  sentence  of  courts  martial, 
over  and  above  any  amount  that  may  be  due  for  the  reim- 
bursement of  government,  or  of  individuals."  The  "  individ- 
uals" here  intended  were  no  doubt  sutlers  and  laundresses, 
or  other  persons,  (including  perhaps  the  class  for  whom 
"reparation"  is  provided  by  Art.  54,)  to  whom  a  lien  on  sol- 
diers' i)ay  may  be  given  by  statute  or  regulation. 

It  is  not  necessary  to  excei)t  in  exi^ress  terms  the  "  dues  of 
the  laundress  "  from  a  forfeiture  of  pay  in  a  sentence.     Y,  405. 

^  See  the  opinion  of  the  Judge  Advocate  General  published 
in  G.  O.  121,  War  Department,  1874. 


FORFEITURE,  II — BY   SENTENCE.  273 

payable  at  successive  pay  days  till  the  entire  forfeiture  is 
satisfied.  XXXVII,  563  j  XXXVIII,  6G2;  XXXIX,  537. 
The  forfeiture,  upon  the  promulgation  and  notice  to  the  party 
of  the  approval  of  the  same,  becomes  a  debt  due  to  the  United 
States,  and  may  legally  constitute  a  charge  against  the  pay 
then  due  the  party,  if  any,  and  be  satisfied  as  far  as  practi- 
cable out  of  such  pay  when  payable,  viz.  at  the  pay  day 
next  succeeding  the  promulgation  of  the  approval  or  of  the 
noting  of  the  approved  forfeiture  on  the  muster-for-pay  rolls.^ 
XXXIX,  266. 

9.  Where  a  soldier  was  sentenced  to  be  dishonorably  dis- 
charged and  to  forfeit  all  his  pay  except  twenty  dollars,  and, 
upon  his  discharge,  it  appeared  that  he  was  indebted  to  the 
United  States  in  a  greater  amount,  held  that  the  excepted  sum 
could  not  legally  be  rendered  to  him.^    XXXVII,  488,  602. 

10.  Where  a  soldier  was  sentenced  to  a  forfeiture  of  ten 
dollars  per  month  of  his  pay  for  eighteen  months,  and  his 
term  of  enlistment  expired  before  the  end  of  that  time,  Jield 
that  he  could  not  legally  be  retained  in  the  service  beyond 
such  term,  for  the  purpose  of  the  full  execution  of  the  for- 
feiture.    XVI,  94,  532. 

11.  Where  a  soldier  was  sentenced  to  a  forfeiture  of  three 
months'  pay,  but  his  term  of  enlistment  expired  in  about  two 
months  after  the  approval  of  the  sentence  so  that  one  third 
of  the  forfeiture  remained  unexecuted, — heldj  on  his  subse- 
quently re-enlisting,  that  this  balance  could  not  legally  be 
stopped  against  his  i)ay ;  the  second  enlistment  being  a  new 
and  independent  contract,  and  the  party  contracting  not 
being  subject  to  a  liability  attaching  to  the  distinct  status 
occupied  by  him  under  a  previous  contract.    XXXVIII,  662. 

12.  Whether,  in  a  case  of  a  non-commissioned  ofiicer  having 
pay  due  him,  and  sentenced  to  reduction  and  forfeiture  of 
pay,  the  forfeiture  should  be  satisfied  out  of  his  jmj  as  non- 
commissioned otficer  or  out  of  his  pay  as  private  after  th^ 
reduction,  will  properly  dei)end  upon  the  intention  of  the 

^  In  the  practice,  however,  of  the  Pay  Department  such  for- 
feitures are  charged  only  against  pay  accruing  suhsequetitly  to 
the  date  of  the  order  promulgating  the  sentence.  See  G.  O. 
53,  Hdqrs.  of  Army,  1878. 

2  See  the  General  Order  referred  to  in  last  note. 

18  D 


274  FORFEITUREj  II — BY   SENTENCE. 

courtj  if  the  same  can  be  gathered  from  the  terms  of  the  sen- 
tence. Bat  where  a  sergeant  to  whom  a  month's  pay  was 
overdue,  was  sentenced  '  to  he  reduced  to  the  ranks,  forfeiting 
three  months'  pay/  held  that  this  forfeiture,  ui)on  the  approval 
of  the  sentence,  created  a  debt  to  the  United  States  which 
might  legally  be  satisfied  out  of  the  pay  of  the  soldier  as  a 
sergeant  so  far  as  the  same  would  go,  and,  as  to  the  balance, 
out  of  his  pay  as  a  private.    XXX,  419. 

13.  Where  an  officer  was  sentenced  to  be  dismissed  with 
forfeiture  of  pay  due,  and,  subsequently  to  the  approval  of 
the  sentence,  but  before  such  approval  had  been  promulgated 
to  the  army,  or  the  ofiicer  had  been  officially  notified  of  the 
same,  he  applied  for  and  received  the  pay  due  him,  held  that 
inasmuch  as  the  forfeiture  had  not  taken  effect  at  the  time  of 
the  payment  no  illegal  act  was  committed  by  the  officer,  and 
that  the  paymaster  who  paid  him  was  not  properly  to  be  held 
accountable  for  the  amount  paid.    X,  609. 

14.  In  a  case  of  a  forfeiture,  by  sentence,  of  "  pay  due," 
(or  ''  pay  due  and  to  become  due,")  the  amount  of  pay  due 
and  payable  to  the  party  at  the  date  of  the  approval  of  the 
sentence  is,  in  contemplation  of  law,  returned  from  the  appro- 
priation for  the  army  to  the  general  treasury,  and,  being  in 
the  treasury,  can  not,  without  a  violation  of  Art.  I,  Sec.  9, 
§  6,  of  the  Constitution,  be  withdrawn  and  restored  to  the 
party,  except  by  the  authority  of  Congress.  XXIII,  642, 
659;  XXYIII,  63,  567;  XXIX,  139.  A  forfeiture  thus  exe- 
cuted cannot  therefore  be  remitted :  a  sentence  forfeiting  pay 
can  be  remitted  only  as  to  pay  not  due  and  payable  at  the 
date  of  the  remission.  I,  393 ;  VIII,  392,  576,  65S ;  IX,  196 ; 
X,  676 ;  XXXY,  372.  Where  a  soldier's  pay  has  been  for- 
feited by  an  executed  sentence,  no  mere  amendment  of  the 
muster-roll  upon  which  the  same  has  been  noted  can  operate  to 
undo  such  forfeiture.  XXX,  44.  After  pay  forfeited  by  sen- 
tence has  gone  into  the  Treasury,  it  cannot  add  to  the  authority 
of  the  Executive  to  return  it  that  the  sentence  was  in  fact  void ; 
the  authority  of  Congress  is  still  necessary  to  the  reimburse- 
ment of  the  officer  or  soldier.    XXXVII,  456. 

15.  In  a  case  of  a  soldier  sentenced  to  be  dishonorably  dis- 
charged, with  a  forfeiture  of  all  his  pay,  it  was  ordered  by 
the  reviewing  ofiicer  that  the  forfeiture  be  so  fiir  remitted  that 
a  sum  '^not  to  exceed  twenty  dollars"  should  be  rendered  to 


FORFEITURE,  n — FUEL  ALLOWANCE.  275 

him  at  liis  discliarge.  Held  that  sucli  a  remission  Tvas,  strictly, 
inoperative  by  reason  of  its  indefiniteness,  it  not  being  a  re- 
mission of  twenty  dollars  or  of  any  part  of  that  snm,  but  of 
some  amount  not  fixed  or  capable  of  being  fixed  by  compe- 
tent authority.  But  advised,,  in  the  interests  of  justice  and 
clemency,  that  the  intent  of  the  reviewing  officer  be  carried 
out  by  excepting  from  the  forfeiture  the  sum  of  twenty  dol- 
lars, provided  so  much  was  found  due  the  soldier  on  the  final 
statement  of  his  account,  and,  if  not,  any  lesser  sum  then 
found  so  due.    XXXIV,  581. 

16.  In  executing  a  sentence  of  forfeiture  of  pay,  the  pay 
forfeited,  in  the  absence  of  specific  statutory  authority  for  the 
purpose,  cannot  be  diverted  from  the  general  treasury  to  any 
particular  fund.  Thus  where  a  soldier  convicted  of  the  em- 
bezzlement of  certain  subsistence  stores  was  sentenced  to  a 
forfeiture  of  pay,  held  that  the  Secretary  of  War  would  not 
be  authorized  to  cause  the  pay  forfeited  to  be  added  to  the 
appropriation  for  the  Subsistence  Department  so  as  to  make 
good  to  the  same  the  amount  lost  by  the  embezzlement- 
XLIII,  85. 

17.  Where  a  soldier,  on  enlisting,  was  paid  an  amount  of 
money  as  local  hoimty,  and  this  money,  under  an  existing 
regulation  of  the  Provost  Marshal  GeneraPs  Office,  adopted 
with  a  view  to  prevent  desertion  and  for  the  safekeeping  of 
the  funds,  was  taken  from  the  possession  of  the  soldier  by 
the  military  authorities,  and  the  soldier  presently  deserted 
and  was  subsequently  apprehended  and  brought  to  trial, — 
advised  that  the  court  was  not  authorized  to  forfeit  this 
money  by  its  sentence;  the  same  being  iirivate  property  of 
the  soldier  held  by  the  authorities,  not  as  money  due  him  by 
the  United  States,  but  as  a  special  bailment  and  trust  for  his 
personal  benefit.    XXII,  642. 

See  eighty  THIRD  ARTICLE  $  3,  4. 
PAY  AND  ALLOWANCES  $  27. 
STOPPAGE  $  1. 
SUSPENSIONS  $  7,  89. 

FUEL  ALLOWANCE. 

See  pay  AND  ALLOWANCES  $  12,  note,  22-25. 


276  GAMBLmG — GENERAL  STAFF. 


a. 


GAMBLING. 

Gambling,  joer  se,  does  not  constitute  a  military  offence. 
If  indulged  in,  however,  to  such  an  extent  or  in  such  a  man- 
ner as  to  give  it  the  character  of  a  disorder  "  to  the  prejudice 
of  good  order  and  military  discipline"  in  the  sense  of  Art. 
62,  or  under  circumstances  so  personally  discreditable  as  to 
bring  it  within  the  description  of  '^  conduct  unbecoming  an 
officer  and  a  gentleman,"  it  may  of  course  be  taken  cogni- 
zance of  by  a  court  martial.  The  Army  Eegulations,  (par.  996, ) 
recognize  it  as  peculiarly  objectionable  when  practised  by  a 
disbursing  officer.^    XYI,  381,  XL,  32. 

GENERAL  ORDERS.^ 

See  evidence  §  10. 

GENERAL  STAFF. 

The  General  Staff  of  the  army,  consisting  of  the  chiefs  of 
the  staff  corps  and  inferior  officers  of  the  same,  constitute 
the  Staff  of  the  Commander-in-chief  of  the  Army — the  Pres- 

1  See,  in  G.  C.  M.  O.  18,  War  Dept.  1871,  a  case  of  a  dis- 
bursing officer  convicted  of  gambling,  as  an  offence  under  Art. 
62 ',  and  note  the  remarks  of  the  reviewing  authority  upon 
an  instance  of  this  class  in  G.  O.  2,  Dept.  of  Arizona,  1878. 
In  an  early  case — in  G.  O.  104,  Hdqrs.  of  Army,  1833 — it  was 
held  that  a  claim  by  a  disbursing  officer,  that  he  had  jilayed 
for  too  small  stakes  to  endanger  the  safety  of  the  public  funds 
entrusted  to  his  charge,  was  not  a  sufficient  excuse  for  his 
gambling, — in  view  of  the  regulation. 

^  Ge'kieral  Court  Martial  Orders  promulgating  the  proceed- 
ings of  trials  by  naval  courts-martial,  are  now  published  in 
series  from  the  Navy  Department.  The  first,  (No.  1  of  1879.) 
was  issued  under  date  of  February  4th  of  that  year. 


GOOD   CONDUCT— OUILTY.  277 

ident.^  As  such,  these  officers  are  properly  under  the  im- 
mediate direction  of  the  Secretary  of  War,  who  acts  for  the 
President  in  the  administration  of  the  military  department. 
XXXYIII,  253  J  XL,  17.    [See  Secretary  of  War.] 

See  judge  ADVOCATE  $  25. 
EESIDENCE. 

GOOD  CONDUCT  IN  CONFINEMENT. 

See  imprisonment  $  18,  19. 

GOVERNOR  OF  STATE. 

See  ARMY— EJ^IPLOYMENT  OF  FOR  CIVIL  PURPOSES  $  1-4. 
BOND  $  11. 
REQUISITION. 
WAK  POWER. 

GUARD  DUTY. 

See  thirty  NINTH  ARTICLE. 

SENTENCE  AND  PUNISHMENT  $  9. 
SENTINEL. 

GUERILLA. 

See  MILITARY  COMMISSION,  II  $  3. 

GUILTY—PLEA  OF. 

See  one  HUNDRED  AND  THIRD  ARTICLE  $  2. 
COURT  MARTIAL,  I  $  9;  Id.,  II  $  7. 
PLEA  vS  1-7. 

^  Stocqueler,  Military  Dictionary,  title  "  General  Staff,"  de- 
fines this  term : — ^'  the  body  of  officers  entrusted  with  the 
general  duties  of  the  army  in  aid  of  a  commander-in-chief." 


278  HABEAS  CORPUS. 


H. 


HABEAS  CORPUS. 

1.  In  a  proclamation  of  May  10, 1861,  the  President  author- 
ized the  commander  of  the  U.  S.  forces  on  the  Florida  coast, 
if  he  found  it  necessary,  ''  to  suspend  there  the  writ  of  habeas 
corpus^  By  G.  O.  104,  War  Department,  Aug.  13,  1862,  the 
President  suspended  the  i^rivilege  of  the  writ  of  habeas  corpus 
in  cases  of  persons  liable  to  draft  who  should  attempt  to^de- 
part  to  a  foreign  country,  or  should  absent  themselves  from 
the  State  or  county  of  their  residence,  in  anticipation  of  a 
draft  to  which  they  would  be  subject.  By  a  i)roclamation  of 
September  24,  1862,  the  President  declared  the  i)rivilege  of 
the  writ  suspended  in  respect  to  all  persons  arrested  or  im- 
prisoned ''  during  the  rebellion  by  any  military  authority," 
or  under  ^'  sentence  of  any  court  martial  or  military  commis- 
sion." These  x)roclamations  and  orders  were  all  based  upon 
the  theory  that  under  Art.  I,  Sec.  9,  par.  2,  of  the  Consti- 
tution, or  otherwise,  the  President  alone,  in  the  absence  of 
any  authority  from  Congress,  was  empowered  to  suspend  the 
privilege  of  the  writ.^ 

But  in  the  following  year,  by  the  Act  of  Congress  of  March 
3,  1863,  c.  81,  s.  1,  it  was  i)rovided — "That  during  the  present 
rebellion  the  President  of  the  United  States,  whenever  in  his 
judgment  the  public  safety  may  require  it,  is  authorized  to 

^The  question  whether  the  President  was  authorized,  in 
his  own  discretion  and  independently  of  the  sanction  of  Con- 
gress, to  exercise  this  power,  was  much  discussed  early  in  the 
late  war.  The  fullest  argument  in  favor  of  the  existence  of 
the  power  in  the  President,  is  contained  in  Mr.  Horace  Bin- 
ney's  treatise  on  "  The  Privilege  of  the  Writ  of  Habeas  Cor- 
pus under  the  Constitution."  And  s^e  also,  Ux  parte  Field, 
5  Blatch.  63 ;  Oi)inion  of  Atty.  Gen.  Bates  in  X  Opins.  74. 
The  weight  of  judicial  authority,  however,  was  the  other  way. 
See  Ux  parte  Merryman,  Taney,  246 ;  McCall  v.  McDowell,  1 
Abbott  U.  S.  P.  212  j  Griflin  v.  Wilcox,  27  Ind.  383  j  In  re 
Kemp,  16  Wise.  359  j  In  re  Oliver,  17  Id.  681. 


HABEAS   CORPUS.  279 

suspend  the  privilege  of  the  writ  of  habeas  corjyusinajij  case 
throughout  the  Uuited  States  or  any  part  thereof;" — Con- 
gress, by  thus  asserting  the  right  in  itself  to  authorize  the 
suspension,  implying  that,  in  its  opinion,  the  power  to  sus- 
pend did  not  reside  in  the  President.^ 

In  sundry  particular  cases,  referred  to  the  Judge  Advocate 
General  by  the  Secretary  of  War,  of  persons  detected  in 
holding  correspondence  with,  or  giving  intelhgence  or  other- 
wise lending  aid  to,  the  enemy,  as  also  in  obstructing  enlist- 
ments in  the  army,  «S:c.,  the  opinion  was  expressed  that  the 
suspension  of  the  writ  by  the  President  would  be  legally  jus- 
tified under  this  Act.  I,  345;  II,  174,  456;  III,  72.  The 
instances,  however,  of  suspension  in  individual  cases  were 
not  numerous ;  for,  presently,  viz.  on  Sept.  15,  1863,  and  pur- 
suant to  the  Act  of  March  1863  above  cited,  the  President 
issued  a  i)roclaraation  suspending  the  privilege  of  the  writ 
generally,  and  '' througliout  the  United  States"  in  all  cases 
'^  where,  by  the  authority-  of  the  President  of  the  United 
States,  military,  naval,  and  civil  officers  of  the  United  States, 
or  any  of  them,  hold  persons  under  their  command  or  in  their 
custody,  either  as  prisoners  of  war,  spies,  or  aiders  or  abet- 
tors of  the  enemy,  or  officers,  soldiers,  or  seamen  enrolled  or 
drafted  or  mustered  or  enlisted  in,  or  belonging  to,  the  land 
or  naval  forces  of  the  United  States,  or  as  deserters  there- 
from, or  otherwise  amenable  to  military  law,  or  the  rules 
and  articles  of  war,  or  the  rules  or  regulations  prescribed  for 
the  military  or  naval  services  by  authority  of  the  President 
of  the  United  States,  or  for  resisting  a  draft,  or  for  any  other 
offence  against  the  military  or  naval  service."  In  a  case  in 
which,  by  the  operation  of  this  last  i)roclamation,  the  writ 
was  suspended,  held  that  any  judge  or  court,  whether  of  the 
United  States  or  of  a  State,  would  be  required  to  dismiss  the 
writ,  on  being  advised,  (in  the  manner  and  form  indicated  in 
the  Act  of  March  3,  1863,  s.  1,)  that  the  party  sought  to  be 
relieved  was  ^'  detained  as  a  i)risoner  under  the  authority  of 
the  President."     XY,  157. 

2.  By  a  proclamation  of  Dec.  1,  1865,  the  President  ''  re- 
voked and  annulled"  the  suspension,  (by  proclamation  of 
Sept.  15,  1863,)  of  the  privilege  of  the  writ  in  certain  States, 
including  New  York.     Held  that  such  revocation  did  not 

^  See  In  re  Muri)hy,  Woolworth,  141. 


280  HABEAS   CORPUS. 

operate  to  authorize  the  discharge,  by  a  court  of  this  State, 
of  a  prisoner  detained  in  military  custody  under  color  of  the 
authority  of  the  United  States.     XXI,  92. 

3.  But,  independently,  on  the  one  hand,  of  any  proclama- 
tion or  act  of  the  President  suspending  the  i^rivilege  of  the 
writ,  or,  on  the  other  hand,  of  any  i^roclamation  revoking  a 
previous  suspension,  and  on  constitutional  grounds  alone, — 
held  that  no  court  or  judge  of  any  State  could  in  any  instance 
be  authorized  to  discharge,  on  habeas  corpus,  a  person,  military 
or  civil,  held  in  military  custody  by  the  authority  of  the 
United  States.  XIX,  92 ;  XXI,  92,  133.  And  held,  partic- 
ularly, in  regard  to  soldiers  arrested  or  confined  by  the  mili- 
tary authorities  under  a  charge  of  or  sentence  for  desertion, — 
that  their  discharge,  uj^on  any  ground,  by  writ  of  habeas  cor- 
pus was  wholly  beyond  the  jurisdiction  of  any  State  tribunal. 
II,  34,  190,  484 ;  III,  104 ;  Y,  398.  So  held,  in  regard  to  per- 
sons arrested  by  a  provost  marshal  as  deserters  for  not 
responding  to  a  draft,  in  time  of  war.  Ill,  457,  578.  And 
further,  held,  (January  1866,)  that  no  State  court  could  have 
jurisdiction,  on  a  proceeding  for  the  discharge  by  writ  of 
habeas  corpus  of  an  enlisted  soldier,  to  pass  ui^on  the  question 
of  the  legality  of  the  soldier's  enlistment,  or  to  discharge  him 
from  his  contract  of  enlistment,  on  the  ground  of  its  inva- 
lidity by  reason  of  minority,  non-consent  of  parent,  or  other 
cause  ',  the  authority  to  discharge  from  the  restraint  and  obli- 
gation of  the  ordinary  military  status  being  considered  to  be 
governed  by  the  same  i)rinciple  as  that  to  discharge  from  an 
arrest  or  confinement  under  a  military  charge  or  sentence,  or 
from  the  custody  of  a  U.  S.  Marshal  under  civil  process  of 
the  United  States.^    XXI,  157;  XXIX,  140;  XXXIII,  271. 

^  Opposed  to  this  view  was  the  opinion  of  Atty.  Gen.  Stan- 
bery  in  Gormley's  case,  (October,  1867,)  XII  Opins.  of  Attys. 
Gen.  258.  But  in  December  1871,  the  ruling  of  the  Judge 
Advocate  General  in  this  class  of  cases  was  sustained  by  the 
United  States  Sui)reme  Court,  in  Tarble's  Case,  13  Wallace, 
397,  in  which  the  judgment  of  a  State  court,  which  had  or- 
dered the  discharge,  on  habeas  corpus,  of  an  enlisted  soldier 
from  "  the  custody  of  a  recruitnig  officer,"  i.  e.  from  the  obli- 
gation of  his  contract  of  enlistment,  on  the  ground  that  he 
had  enlisted  when  under  eighteen  years  of  age  and  without 
his  father's  consent, — was  reversed  as  an  unconstitutional 
assumption  of  authority.  In  applying  to  the  case  tiic  prin- 
ciple laid  down  in  Ableman  v.  Booths  21  Howard,  506,  the 


HABEAS   CORPUS.  281 

4.  And  held  that  a  State  court  was  uot  authorized  to  dis- 
cliarge  on  habeas  corpus  sl  civilian  held  by  the  authority  of  the 
United  States  as  a  convict  under  sentence  of  a  military  com- 
mission.    XXYIII,  50. 

5.  Where  a  writ  of  habeas  corpus,  issued  by  a  State  court  or 
judge,  for  the  relief  of  a  person  held  in  arrest,  confinement, 
or  under  enlistment,  by  the  military  authorities,  is  served 
upon  a  military  oiBcer,  he  is  not  required  to  comply  with  the 
direction  of  the  writ  to  produce  before  the  court  the  body  of 
the  person  so  held.     It  is  sufficient  for  him  merelj'  to  make 

Court,  by  Field,  J.,  observes : — "  State  judges  and  State 
courts,  authorized  by  laws  of  their  States  to  issue  writs  of 
habeas  corpus^  have  undoubtedly  a  right  to  issue  the  writ  in 
any  case  where  a  i^arty  is  alleged  to  be  illegally  confined 
within  their  limits,  unless  it  api^ears  upon  his  api)lication 
that  he  is  confined  under  the  authority,  or  claim  and  color  of 
the  authority,  of  the  United  States,  by  an  officer  of  that  gov- 
ernment. If  such  fact  ai^pear  upon  the  application  the  writ 
should  be  refused.  If  it  do  not  appear  the  judge  or  court 
issuing  the  writ  has  a  right  to  inquire  into  the  cause  of  im- 
prisonment, and  ascertain  by  what  authority  the  person  is 
held  within  the  limits  of  the  State ;  and  it  is  the  duty  of  the 
marshal,  or  other  officer  having  the  custody  of  the  prisoner, 
to  give,  by  a  i)roper  return,  information  in  this  respect.  His 
return  should  be  sufficient,  in  its  detail  of  facts,  to  show  dis- 
tinctly that  the  imprisonment  is  under  the  authority,  or  claim 
and  color  of  the  authority,  of  the  United  States,  and  to  ex- 
clude the  suspicion  of  imposition  or  oppression  on  his  part. 
And  the  process  or  orders  under  which  the  x)risoner  is  held, 
should  be  i)roduced  with  the  ret^irn  and  submitted  to  inspec- 
tion, in  order  that  the  court  or  judge  issuing  the  writ  may 
see  that  the  prisoner  is  held  by  the  officer,  in  good  faith, 
under  the  authority,  or  claim  and  color  of  the  authority,  of 
the  United  States,  and  not  under  the  mere  pretence  of  having 
such  authority.  *  *  *  The  State  judge  or  State  court 
should  proceed  no  further  when  it  appears,  from  the  applica- 
tion of  the  party,  or  the  return  made,  that  the  prisoner  is 
held  by  an  officer  of  the  United  States  under  Avhat,  in  truth, 
purports  to  be  the  authority  of  the  United  States ;  that  is,  an 
authority,  the  validity  of  which  is  to  be  determined  by  the 
Constitution  and  laws  of  the  United  States.  If  a  party  thus 
held  be  illegally  imprisoned,  it  is  for  the  courts  or  judicial 
officers  of  the  United  States,  and  those  courts  or  officers 
alone,  to  grant  him  release."  This  decision  put  an  end  to  a 
controversy  of  many  years  standing,  and  swept  away  a  mass 
of  counter  rulings  by  the  State  courts,  the  majority  of  which 
had  sustained  the  authority  of  the  State  judiciary  in  such 
cases. 


282  HABEAS  CORPUS. 

return  showing  clearly  that  such  i:)erson  is  held  by  the  au- 
thority of  the  United  States  as  a  deserter,  or  under  a  contract 
of  enlistment,  or  otherwise,  as  the  case  may  be.^  The  State 
court,  upon  being  thus  apprised,  will  proi^erly  dismiss  the 
writ.     Ill,  104 ;  XXI,  157. 

6.  Where, — prior  to  the  decision  of  the  IT.  S.  Supreme  Court 
in  Tarble's  case, — a  State  court,  having  issued  a  writ  of  haheas 
corpus  in  a  case  of  a  military  prisoner,  attempted  to  enforce  a 
process  of  contempt  against  the  officer  in  charge,  who,  though 
duly  making  a  return  showing  that  the  party  was  detained 
by  the  authoriry  of  the  United  States,  refused  to  j^roduce  his 
body  in  court, — held  that  such  attempt  should  be  resisted  by 
the  oliicer,  who  should  be  supported  in  his  resistance  by  such 
military  force  as  might  be  necessary.  Ill,  502  j  XIX,  305 ; 
XX [,  92.  So,  wliere  a  State  court,  after  such  a  return,  still 
assumed  to  proceed  in  the  case  and  to  order  the  discharge  of 
the  party, — here  a  soldier  in  arrest  as  a  deserter, — lield  that 
the  execution  of  such  order  should  be  resisted  and  prevented 
by  military  force.     Ill,  104;  XXI,  157. 

7.  Where, — i^rior  to  the  decision  in  Tarble's  Case, — an 
officer  undergoing,  in  a  State  penitentiary,  a  sentence  duly 
imposed  by  a  court-martial,  was  discharged  from  his  impris- 
onment b}^  a  State  court  and  was  at  large,  advised  that  he  be 
forthwith  rearrested  and  re-confined.  XXX,  56.  So,  in  a 
case  of  a  soldier  discharged  from  his  enlistment,  on  the  ground 
of  minority,  by  a  State  court,  advised  that  he  be  arrested  by 
the  military  authorities  and  held  to  service.     XXX,  190. 

8.  But  in  a  case  of  a  soldier  or  other  person  held  in  military 
custody,  in  which  a  writ  of  habeas  corpus  is  issued  by  the 
United  States  judiciary, — a  co-ordinate  branch  of  the  same 
sovereignty  as  that  by  which  the  party  is  restrained, — it  is  the 
duty  of  the  officer  to  whom  the  writ  is  addressed  to  make 
thereto  a  full  return  of  the  facts  and  to  bring  into  court  the 
body  of  such  party,  submitting  to  the  court  the  whole  ques- 
tion of  authority  and  discharge,  and  abiding  by  its  decision 
and  order  in  the  case.     XIX,  377 ;  XXI,  157. 

See  martial  LAW  $  5,  note. 

^  See  citation  from  Tarble's  Case  in  last  note. 


HEAD   OF  DEPARTMETsT — nOUllS   OF   SESSION.  283 


HEAD  OF  DEPARTMENT. 


See  claims  ^  1,  and  note,  4. 
COUNSEL,  I. 
SECEETARY  OF  WAR. 


HOMICIDE. 

See  fifty  EIGHTH  ARTICLE  $  I. 

SIXTY  SECOND  ARTICLE  $  1,  2,  3. 
CHARGE  ^  21. 
MANSLAUGHTER. 
MURDER. 


HONORABLE  DISCHARGE. 

See  FOURTH  ARTICLE  §  2. 
ALIEN. 

ARTIFICIAL  LIMBS  $  2. 
BOUNTY  ^  2,  4,  5. 
DESERTION  ^  11. 
DISCHARGE  $  1-8. 
PENSION  $  2. 

STATUTES— CONSTRUCTION  OF  $  7. 
VOLUNTEERS  ^  2. 


HOSPITAL. 

See  TWENTIETH  ARTICLE  $  2. 

THIRTY  EIGHTH  ARTICLE  $  6. 
FORTY  EIGHTH  ARTICLE  ^  3. 
SIXTY  FIRST  ARTICLE  $  5. 
MEDICAL  OFFICER  §  1. 
ORDER,  I  M. 


HOURS  OF  SESSION  OF  COURT  MARTIAL. 

See  ninety  FOURTH  ARTICLE. 
RECORD  $  2. 


284  EQIPEISONMENT. 


IMPRISONMENT. 

1.  A  sentence,  which,  in  imposing  confinement,  (or  impris- 
onment— the  two  terms  being  practically  synonymons  in  sen- 
tences of  courts  martial,)  fails  clearly  to  indicate  how  long 
the  same  is  to  continue,  is  irregular  and  inoperative.  Such 
a  sentence  should  be  disapproved  by  the  reviewing  authority 
unless  it  can  be  procured  to  be  corrected  by  a  reassembling 
of  the  court  for  the  purpose.    XYI,  283. 

2.  In  imposing  a  sentence  of  confinement  at  a  military 
prison,  the  court  should  properly  add — '^  at  the  Leavenworth 
Military  Prison,"  or — ''at  such  prison  as  the  proper  authority 
may  designate,"  or  in  words  to  that  efiect.  To  direct  that  the 
place  of  confinement  be  designated  by  an  officer  inferior  to 
the  convening  authority  is  irregular  and  imi^roper.  A  sen- 
tence of  confinement  is  executed  by  sending  the  party  under  a 
proper  guard  to  the  Military  Prison,  or  other  place  of  confine- 
ment duly  designated,  and  at  the  same  time  transmitting  to 
the  ofiicer  there  in  command  a  coi)y  of  the  order  approving 
the  sentence  and  ordering  the  execution,  together  with  other 
proper  papers  required  to  exhibit  the  status  of  the  soldier.^ 
IV,  356;  Y,  300;  IX,  600.     . 

3.  It  is  now  established  by  a  long  series  of  precedents  that 
a  general  court  martial  is  authorized  to  adjudge,  by  sentence, 
a  term  of  imprisonment  to  extend  beyond  the  end  of  the  i)end- 
ing  term  of  enlistment  of  the  soldier,  or  beyond  his  legal  period 
of  service.  Thus,  for  example,  where  the  term  of  the  enlist- 
ment of  the  accused  has  still  a  year  to  run,  the  court — the 

^ ''  Whenever  i)risoners  are  sent  to  the  Leavenworth  Military 
Prison  to  serve  out  their  sentences,  the  order  promulgating 
the  sentence,  and  the  descriptive  list,  to  which  will  be  ap- 
pended a  statement  of  conduct,  will  be  forwarded  with  them." 
G.  O.  64,  War  Dept.,  1875. 


imprisonjment.  285 

gravity  of  the  ofience  justifying  it — may  seutence  liiin  to 
an  imi^risonmeut  for  two  years  or  longer :  so,  it  may  sentence 
him  to  be  dishonorably  discharged,  (thus  itself  discontinuing 
his  period  of  service,)  and  then  confined  for  a  designated 
term.  ^  And  such  sentences  may  be  executed  with  the  same 
legality  as  any  other  sentences  of  imprisonment.  In  the 
former  case  the  soldier  will  not  be  entitled  to  be  released  from 
the  confinement  at  the  end  of  his  enlistment,  nor,  in  the  latter, 
will  he,  ui)on  the  execution  of  the  discharge,  become  so  entitled. 
In  each  case,  upon  the  determination  of  the  enlistment  or 
service,  the  i)arty  continues  to  be  held  under  his  sentence 
not  as  a  soldier  but  as  a  civilian  U.  S.  convict.  XXXI, 
89,  353 ;  XXXYIII,  513  j  XXXIX,  509.  Where  the  approval 
of  a  sentence  of  confinement  in  a  case  of  a  soldier,  in  which 
proceedings  had  been  duly  commenced  pending  his  term  of 
enlistment,  was  not  promulgated  till  after  such  term  had 
actually  expired,  but  no  discharge  had  been  given  to  the  sol- 
dier before  promulgation,  lield  that  it  would  be  legal  to  sub- 
ject him  to  the  confinement  adjudged  by  the  sentence.  XIX, 
600.    [See  Court  Martial,  II  §  C] 

4.  Sentences  of  imprisonment  till  a  fine,  also  imposed  by  the 
sentence,  is  paid,  are  sanctioned  by  the  usage  of  the  service. 
It  is  proper,  however,  in  such  sentences  to  affix  a  limit  be- 
yond which  the  x^unishment  shall  not  be  continued  in  any 
event.  XIII,  472 ;  XX,  16 ;  XXXII,  47.  Where  a  sentence 
adjudges  a  fine,  without  also  adding,  (with  a  view  to  enforcing 
its  payment,)  a  term  of  confinement, — such  a  confinement 
cannot  of  course  legally  be  imposed  by  the  military  com- 
mander. XIII,  472.  So,  lield  that  par.  II  of  G.  O.  61,  War 
Department,  1865,  to  the  eflect  that,  where  a  court  martial,  in 
imposing  a  fine,  has  failed  to  require  that  the  prisoner  shall  be 
confined  till  the  fine  is  paid,  "he  will  not  be  released  without 
orders  from  the  War  Department,  except  on  payment  of  the 
fine," — transcended  the  authority  of  an  executive  order ;  such 
a  requirement  being  a  punishment ,  which  can  be  i)rescribed 
only  by  sentence  of  court-martial.    XXXIII,  309. 

5.  The  old  rule,  that  the  term  of  a  confinement,  (of  so  many 
months,  years,  «S:c.,)  imi^osed  by  sentence  of  court  martial, 

'As  to  the  or^er  of  the  execution  of  the  punishments,  when 
dishonorable  discharge  and  a  term  of  imjuisonment  are  im- 
posed by  the  same  sentence, — see  Discharge  §  8,  9. 


286  IMPRISONIVIENT. 

commenced  on  the  day  on  which  the  prisoner  was  delivered 
to  the  proper  officer — as  the  officer  in  charge  of  the  prison  or 
commanding  the  post — to  be  con»fined  according  to  tlie  sen- 
tence, having  been  found  inconvenient  in  i^ractice,  there  was 
substituted  for  it,  by  G.  0. 21,  Hdqrs.  of  the  Army,  of  1870,  the 
rule  that — ''the  confinement  shall  be  considered  as  commenc- 
ing at  the  date  of  the  promulgation  of  the  sentence  in  orders.'' 
This  rule  being  more  favorable  to  prisoners  than  the  old  one, 
its  authority  is  not  known  to  have  ever  been  questioned. 
XXI,  257  ;  XXX,  150. 

6.  While  the  fact  that  the  accused  has  been  confined  for  an 
unreasonable  i^eriod  awaiting  trial  should  proi^erly  be  taken 
into  consideration  by  the  court  in  estimating  the  period  of 
confinement  proper  to  be  imposed  upon  his  conviction, 
(XXVIII,  104,)  neither  the  time  during  which  the  accused 
may  have  been  held  in  arrest  and  confinement  prior  to  trial, 
nor  that  during  which  he  may  liave  been  so  held  after  trial 
and  before  the  promulgation  of  his  sentence,  can  be  credited 
on  a  term  of  imprisonment  adjudged  thereby,  in  executing 
the  same.  If  the  party  has  been  detained  for  an  unreason- 
ably long  period  at  either  of  these  stages  of  the  proceedings, 
he  can  be  indemnified  therefor  only  by  a  proportionate  miti- 
gation or  remission  of  his  punishment.  XI,  380  j  XXYIII, 
340,  482. 

7.  Where  an  officer  or  soldier  is  sentenced  merely  to  a  term 
of  confinement  without  the  addition  of  "  hard  labor," — while 
he  may  proi^erly  be  required  to  perform  the  ordinary  domes- 
tic or  police  work  directed  by  the  sanitary  regulations  of  the 
prison,  he  cannot  i^roperly  be  put  to  unusual  labor  of  a  severe 
and  continuous  character.  Thus  held  that,  to  require  a  sol- 
dier sentenced  simply  to  be  confined,  and  confined  accord- 
ingly at  Alcatraz  Prison,  to  work  daily  at  blasting  and  quar- 
rying rock,  was  adding  to  the  punishment ^  (see  Sentence  and 
Punishment  §  G,)  and  therefore  unauthorLied.  XXXVII, 
640 ;  XXXIX,  500  5  XLI,  123.  To  a  proper  execution,  how- 
ever, of  a  sentence  of  confinement,  a  secure  keeping  of  the 
person  is  of  course  essential.  Where,  therefore,  it  is  not  pos- 
sible otherwise  to  jirevent  a  ])risoner's  escape  or  to  prevent 
violence  on  his  part,  he  may  be  ironed  without  adding  to  the 
punishment.  But  such  exceptional  restraint  cannot  legally 
be  imi)osed  except  where  thus  necessary.    XXXIV,  375. 


IMPRISON]VIENT.  287 

8.  It  is  not  adding  to  tbe  punisliment  in  executing  a  sen- 
tence of  confinement,  to  require  the  prisoner  to  perform  work 
prescribed  for  prisoners  of  liis  class  bj'  the  statute  law.  Thus 
persons  sentenced  to  imprisonment  at  the  Military  Prison  at 
Leavenworth,  may  legally  be  employed  in  the  labor  or  at  the 
trades  indicated  by  Sec.  1351,  Eev.  Sts.    XXXYII,  G40. 

9.  It  is  not  adding  to  the  punishment,  and  is  authorized  at 
military  law,  for  the  commander  who  ordered  the  original 
commitment,  or  his  ijroi)er  superior,  to  change  the  place  of 
confinement  of  a  i^risoner,  if  such  a  change  is  required  by  the 
exigencies  of  the  service,  provided  that  no  more  severe  species 
of  confinement  than  that  contemplated  in  the  sentence  is 
enforced  after  the  transfer.  XXI,  49;  XXXIX,  659;  XLI, 
123. 

10.  While  the  authority  upon  whom  it  devolves  to  execute 
a  sentence  of  confinement  is  not  authorized  to  add  to  the 
punishment  adjudged,  he  is,  on  the  other  hand,  not  justified 
in  executing  the  same  in  so  indulgent  a  manner  as  to  divest 
the  punishment  of  its  intended  and  legitimate  force  and  effect. 
Thus  where  certain  prisoners,  sentenced  to  terms  of  confine- 
ment on  conviction  of  grave  offences,  were,  w  hile  in  ordinary 
good  health,  permitted  to  be  emi>loyed  upon  honorable  duties 
as  clerks,  &c.,  in  the  offices  attached  to,  (and  one  of  which 
was  outside  of,)  the  i)rison,  held  that  such  employment  was 
in  derogation  of  the  proi^er  requirements  of  a  sentence  of 
imj)risonment  and  should  be  ordered  to  be  discontinued. 
XI,  544. 

11.  Where  a  soldier,  while  undergoing  a  sentence  of  con- 
finement, was,  by  mistake,  released  by  the  post  commander 
before  the  exi^iration  of  his  legal  term,  held  that  the  dei)art- 
ment  commander  by  whom  the  sentence  had  been  approved 
was  legally  authorized  to  order  the  soldier  to  be  re-committed 
for  the  purpose  of  completing  his  punishment.     XXYII,  429. 

12.  Where  a  soldier,  after  the  imposition  by  the  court  in 
his  case  of  a  sentence  of  confinement,  but  before  action  had 
been  taken  upon  the  same  by  the  reviewing  authority,  escaped 
from  custody,  and,  after  the  sentence  had  been  duly  api)roved 
and  promulgated,  was  arrested,  held  that  he  would  legally 
and  properly  be  committed  to  the  confinement  adjudged. 
XXIX,  7.  So,  a  soldier  who  escapes  from  custody  i)ending 
the  execution  of  a  sentence  of  confinement,  and  subsequently 


288  IMPRISONMENT. 

is  arrested  or  surrenders  himself,  may  legally  be  remanded 
to  serve  out  his  term  as  in  a  case  of  a  civil  prisoner.  XXVII, 
480 ;  XXXYIII,  119. 

13.  But  where  a  soldier  sentenced  to  be  confined  for  the  re- 
mainder of  his  term  of  enlistment,  or  for  a  term  not  longer 
than  the  period  remaining  of  such  term,  escaped,  and  was 
not  arrested  till  after  the  end  of  such  term,  held  that  he  could 
not  be  remanded  to  undergo  the  imprisonment  adjudged  by 
liis  sentence,  since  this  was  clearly  contemplated  by  the  court 
to  be  executed  pending  the  term  of  enlistment  of  the  soldier, 
and  could  not  legally  be  enforced  after  the  period  thus  limited. 
X,  574;  XY,  524;  XXXI,  281. 

14.  The  discharge,  by  executive  authority  under  the  Fourth 
Article  of  war,  of  a  soldier  whose  enlistment  has  not  expired, 
but  who  is  undergoing  a  term  of  imprisonment  imposed  upon 
him  by  a  sentence  of  court  martial,  (which  did  not  also  include 
the  i:)enalty  of  dishonorable  discharge,  or  imi3osed  it  to  take 
effect  at  the  end  of  the  imprisonment,)  held  to  operate  not 
merely  as  a  discharge  of  the  soldier  from  his  enlistment,  but 
as  a  remission  of  the  unexecuted  term  of  his  confinement  and 
to  entitle  him  to  be  set  at  liberty.^    XXXII,  80 ;  XLI,  350. 

15.  So,  where  a  soldier,  while  under  a  sentence  of  confine- 
ment for  a  term  less  than  the  remaining  term  of  his  enlist- 
ment, (imposed  without  dishonorable  discharge,)  was  for  a 
further  offence,  tried,  convicted,  and  sentenced  to  dishonora- 
ble discharge  and  imprisonment,  and  was  thereupon  duly  dis- 
charged accordingly,  held  that  the  period  of  the  pending  con- 
finement under  the  first  sentence  was  thereupon  terminated, 
leaving  to  be  executed,  after  the  discharge,  only  the  confine- 
ment adjudged  by  the  second  seutence.    XLI,  57G. 

10.  Where  a  soldier  while  undergoing  a  seutence  of  con- 
finement, is  brought  to  trial  for  a  further  offence,  and,  on  con- 
viction, is  sentenced  to  a  further  term  of  iuix^risonment,  the 
l^unishmeut  thus  adjudged  is  cumulative  upon  that  pending, 
and  its  execution  will  properly  commence  at  the  date  when 
the  pending  confinement  terminates,  whether  by  expiration 
of  time  or  by  remission.     To  render  a  i)unishment  thus  cumu- 

^  See  this  opinion  adopted  and  published  in  Circular  from 
the  War  Department  to  Department  Commanders  of  Aug. 
12,  1871.  And  note  an  instance  of  its  ap[)lication — to  the 
cases  of  twenty  three  i^risoners — in  G.  C.  M.  O.  118,  Dei)t.  of 
the  Missouri,  1871. 


IMPRISONMENT.  289 

lative,  it  is  not  required  that  it  should  be  designated  as  such 
by  the  court  in  the  sentence.  XXXI,  315;  XXXII,  G70; 
XXXIV,  479;  XXXY,  433;  XXXVIII,  43,  55G;  XLIII,  102. 

17.  Where  a  soldier  was  at  two  successive  trials  tried  for 
separate  offences  and  was  sentenced,  upon  the  first  trial  to 
dishonorable  discharge  and  imprisonment,  and  upon  the  sec- 
oijd  to  further  imprisonment;  and  the  two  sentences  were 
approved  and  promulgated  in  orders  bearing  the  same  date ; 
held  that,  as  the  law  does  not  recognize  fractions  of  a  day,, 
these  sentences  were  to  be  regarded  as  having  gone  into  op- 
eration at  the  same  moment,  and  taken  effect  as  oue  sentence, 
so  that  the  execution  of  the  dishonorable  discharge  imposed 
by  the  former  sentence  did  not  affect  the  enforcement  of  the 
punishment  of  confinement  imposed  by  the  latter  sentence, 
but  that  the  same  was  legally  enforceable  as  cumulative  or 
rather  continuing  upon  the  term  of  confinement  imposed  by 
the  former  sentence.    XXXIV,  479. 

18.  Held  that  the  Act  of  March  3,  1875,  c.  145,  providing 
for  a  deduction  of  five  days  in  each  month  of  good  conduct, 
to  be  allowed  at  the  end  of  the  confinement,  as  a  deduction 
from  and  abridgement  of  the  term  of  sentence  of  prisoners 
convicted  of  offences,  ^'against  the  laws  of  the  United  States," 
and  confined  under  sentence  in  any  prison  of  a  State  or  Ter- 
ritory, (''which  has  no  system  of  commutation  for  its  own 
prisoners,") — applied  to  prisoners  confined  in  such  i)rison 
under  sentence  of  courts  martial,  but  did  not  apply  to  prisoners 
confined  in  military  i)risons.^     XXXIV,  22. 

19.  Where,  pending  the  confinement,  under  sentence,  of  a 
soldier  in  a  militarj-  prison,  a  x>ortion  of  his  term  of  confine- 
ment was  by  competent  authority  remitted,  held  that  he 
remained  entitled,  upon  good  conduct,  to  the  abatement  pro- 
vided in  general  terms  by  G.  O.  64  of  1875 ;  the  fact  of  the 

^  But  see  the  subsequent  G.  O.  04,  War  Department,  1875, 
referring  to  this  statute,  (in  connection  with  Sec.  1352,  Kev. 
Sts.,  providing  for  the  partial  remission  for  good  conduct  of 
the  sentences  of  prisoners  confined  in  the  Leavenworth  Mili- 
tary Prison,)  and  applying  to  cases  of  prisoners  in  military 
prisons  a  rule  similar  to  that  established  by  such  statute,  as 
follows: — "To  equalize  the  practice  in  regard  to  inmishment 
of  military  prisoners  so  far  as  i)racticable,  an  abatenient  of  five 
days  for  each  month  of  consecutive  good  conduct  may  be  al- 
lowed upon  each  sentence  to  confinement  for  over  six  months.'- 
19  D 


290  IMPROTEMENT   OF  RIYEES  AND  HAEBOES. 

remission  not  affecting  his  right  to  the  abatement  during 
the  continuance  of  his  term  as  reduced  by  the  remission. 
XXXVII,  490. 

See  eighty  THIRD  ARTICLE  $  5,  7. 
NINETY  SEVENTH  ARTICLE. 
DISCHARGE,  III  $  10,  12. 
FORFEITURE,  II  $  7. 
SOLITARY  CONFINEMENT. 
SENTENCE  AND  PUNISHMENT  $  10, 13, 14. 

IMPROVEMENT  OF  RIVERS  AND  HARBORS. 

1.  When  Congress,  in  the  exercise  of  its  exclusive  power 
to  direct  how  the  public  money  shall  be  employed,  has  appro- 
priated a  certain  sum,  to  be  devoted,  without  exceptions  or 
provisos,  to  a  certain  specific  internal  improvement,  it  devolves 
upon  the  executive  department  of  the  government,  charged 
as  it  is  with  the  execution  of  the  laws  enacted  by  the  Legis- 
lature, to  proceed  with  the  work  under  the  appropriation, 
without  entertaining  any  question  as  to  the  expediency  of  the 
expenditure.  Thus  where  Congress  had  made  in  general 
terms  an  appropriation  of  a  specific  amount  for  improving  a 
certain  river,  advised  that  it  was  for  the  officer  charged  with 
the  improvement  simply  to  do  the  worJcy  without  delaying  to 
raise  or  consider  questions  or  claims  of  title  to  the  land, 
&c.,  to  be  affected  by  the  improvement ;  such  matters  being 
quite  beyond  the  province  of  an  executive  official  under  the 
circumstances.    XLIII,  101. 

2.  Where  derelict  articles — wrecks  for  example — are  encoun- 
tered by  officers  of  the  engineer  corps,  as  obstructions  to  the 
improvement  of  rivers,  harbors,  &c.,  required  by  Congress, 
(in  the  exercise  of  its  power  to  regulate  commerce,)  to  be 
cleared  and  improved,  it  will  be  legal  and  proper  for  such 
officers  to  remove  such  obstructions  in  the  most  effectual 
manner.  If  the  property  is  not  actually  abandoned  and  is 
valuable,  it  will  in  general  be  expedient  first  to  give  notice  to 
the  owners,  (personally  if  practicable,  or,  if  not,  through  the 
newspapers,)  themselves  to  make  the  removal  within  a  certain 
reasonable  time.^    XXXVI,  569. 

^►See  the  recent  Act  of  Jaimary  23,  1880,  in  which  the 
giving  of  such  a  notice  is  specifically  x)rovided  for,  in  a  par- 
ticular case. 

In  an  opinion  of  the  Attorney  General,  of  May  24,  1877, 


INDIAN — INDIAN  COUNTRY.  291 

3.  Where  a  contract  was  about  to  be  made  with  a  civilian 
for  the  removal,  from  a  harbor  channel,  of  certain  wrecks,  not 
known  to  be  fully  abandoned,  (and  directed  by  Act  of  Con- 
gress to  be  caused  to  be  removed  by  the  Secretary  of  War,)  and 
it  was  proposed  by  the  engineer  officer  in  charge  to  stipulate 
in  the  contract  that  the  wrecks  when  removed  should  belong 
to  the  contractor,  lield  that  this  could  not  i^roperly  be  done,  the 
United  States  having  no  property  in  such  wrecks,  (the  same 
not  being  government  vessels,)  but  simply  a  right  to  remove 
them  as  constituting  obstructions  to  commerce  between  the 
States.     XLIIT,  284. 

INDIAN. 

See  army— employment  OF  FOR  CIVIL  PURPOSES  $  8. 
INDIAN  COUNTRY. 
INDIAN  WAR. 
WITNESS. 


INDIAN  AGENT. 

See  army— employment  OF  FOR  CIVIL  PURPOSES  $  8. 
CIVIL  OFFICE  ^  5,  note. 


INDIAN  COUNTRY. 

1.  Eeld,  (October,  1877,)  that  the  term  ^'  Indian  Country,*' 
as  employed  in  the  statutes  regulating  trade  and  intercourse 
with  the  Indians,  (see,  particularly,  Ch.  lY,  Title  XXVIII, 
Eev.  Sts.,)  might  i^roperly  be  defined  in  general  as  including 
the  following  territory,  viz. :  Indian  reservations  occupied  by 
Indian  tribes :  Other  districts  so  occupied  to  which  the  Indian 
title  has  not  been  extinguished :  Any  districts  not  in  other 
respects  Indian  country,  over  which  the  operation  of  those 

(XV  Opins.  — ,)  it  is  held  that  the  Secretary  of  War,  where 
authorized  hj  an  Api^ropriation  Act  to  improve  the  na\igation 
of  a  navigable  stream,  may  cause  to  be  removed  wrecks,  not 
yet  abandoned  but  still  private  property,  if  he  considers  them 
obstructions  to  navigation.  And  see  his  later  opinion  of  April 
27,1880,  (XVI  Opins.—,)  as  to  the  authority  of  the  United 
States  to  improve  navigable  rivers  to  the  disregard  of  indi- 
Tidual  lights  of  property  in  the  soil  of  the  bed. 


202  INDIAN   COUNTRY. 

statutes  may  be  extended  by  treaty  or  Act  of  Congress.' 
XXXIX,  214. 

2.  In  view  of  the  positive  terms  of  Sec.  2140,  Eev.  Sts.,  an 
officer  of  the  army  not  only  may  but  should  ''take  and  destroy 
any  ardent  spirits  or  wine  found  in  the  Indian  country  except 
such  as  may  be  introduced  therein  by  the  War  Department.'^ 
The  Section  imposes  this  as  a  "duty"  upon  "any  person  in 
the  service  of  the  United  States" — including  of  course  military 
as  well  as  civil  officials.  Held  however  that  the  authority 
given  by  the  statute  to  destroy  liquor  brought  into  an  Indian 
reservation  did  not  authoiize  the  destruction  by  the  military 
of  a  building,  the  private  property  of  a  citizen,  in  which  the 
liquor  was  found  stored.     XXXV,  350. 

3.  Under  Sec.  2150,  Eev.  Sts.,  a  military  commander  may 
be  authorized  and  directed  by  the  President  to  arrest  by  mil- 
itary force  and  deliver  to  the  proper  civil  authorities  for  trial, 
any  white  persons  or  Indians  who  may  be  in  the  Indian  country 
engaged  in  furnishing  liquor  to  Indians  in  violation  of  law ; 
as  also  to  prevent,  by  military  force,  the  entry  into  such  coun- 
try of  persons  designing  to  introduce  liquor  therein  contrary 
to  law.  Held  that  this  authority  to  prevent  was  clearly  an 
authority  to  arrest^  where  arrests  were  found  necessary  to  re- 
strain persons  attempting  to  introduce  liquor  or  other  in- 
hibited property.    XLII,  192.     [See  Army — Employ:vient 

OF  FOR  CIVIL  PURPOSES  §  6.] 

4.  In  view  of  the  duty  devolved  by  Sec.  2140,  Eev.  Sts., 
upon  "any  person  in  the  service  of  the  United  States,"  to 
take  and  destroy  spirituous  liquors  in  the  Indian  country, 
held  that  a  ]30st  commander  in  such  country  who  seized  and 
destroyed  a  quantity  of  such  liquors  introduced  into  such 

^  See  this  opinion  as  adopted  and  incorporated  in  G.  O.  97, 
Hdqrs.  of  Army,  1877  5  also,  in  the  same  connection,  XIY 
Opins.  of  Attys.  Gen.  290;  United  States  v.  Forty  Three 
Gallons  of  Whiskey,  3  Otto,  188  5  Bates  v.  Clark,  5  Id.  204 ; 
United  States  v.  Seveloff,  2  Sawyer,  311.  That,  in  view  of 
the  Act  of  March  3,  1873,  extendhig  to  it  certain  provisions 
of  the  Act  of  June  30, 1834,  the  Territory  of  Alaska  is  "  Indian 
country,"  so  far  as  concerns  the  introduction  and  disposition 
of  s])irituous  liquor,  and  that  j^ersons  violating  such  provisions 
may  therefore  be  ai rested  by  militaiy  force, — see  In  re  Carr,  3 
Sawyer,  310 ;  also  citation  from  sajiie  case  in  note  to  Alaska 
§  2,  and  XIV  Opins.  of  Attys.  Gen.  327. 


INDIAN  WAR.  293 

country  -without  the  aiithority  of  the  Secretary  of  War,  but 
not  found  within  the  limits  of  Ms  military  command^  had  uot 
exceeded  his  powers.    XXXI,  205. 

See  post  TRADER  $  11. 


INDIAN  WAS. 

1.  Active  hostilities  with  Indians  do  not  constitute  a  state 
of  foreign  war,  the  Indian  tribes,  even  where  distinct  poUtical 
communities,  being  subject  to  the  sovereignty  of  the  United 
States.^  Warfare  inaugurated  by  Indians  is  thus  a  species 
of  domestic  rebellion,  but  it  is  so  far  assimilated  to  foreign 
war  that  during  its  i^endency  and  on  its  theatre  the  laws  and 
usages,  which  govern  and  apply  to  persons  during  the  exist- 
ence of  a  foreign  war,  are  to  be  recognized  as  in  general  pre- 
vailing and  operative.  See  Sixty  Third  Article  §  4; 
Military  Coivlmission,  II  §  4.  That  the  mere  making  oi 
predatory  incursions  by  parties  of  Indians  with  whose  tribe 
no  general  hostilities  have  been  inaugurated  does  not  consti- 
tute an  Indian  war, — see  Military  Commission,  II  §  7  & 
note. 

2.  Held  that  the  Cherokee  ^Ration,  during  the  late  war,  did 
not  occupy  the  status  of  an  insurrectionary  State,  and  was 
not  therefore  included  in  the  application  of  the  statutes  and 
proclamations  which  related  to  such  States,  but  that  its  atti- 
tude from  the  date  of  its  treaty  with  the  confederate  govern- 
ment of  October  7,  1861,  to  its  treaty  with  the  United  States 
of  July  19, 18GC,  was  that  of  an  ally  of  the  confederacy,  to  the 
extent  that  the  individual  members  of  the  nation  who  took 
part  in  hostilities  against  the  United  States  became  legally 
assimilated  with  the  enemy.     XXX,  20. 

3.  Indians,  who,  having  occupied  an  attitude  of  hostility  or 
quasi  hostility  toward  the  United  States,  have  in  good  faith 
resumed  and  been  admitted  to  friendly  relations  therewith, 
are  entitled,  as  repentant  wards,  to  the  protection  of  the  gov- 
ernment, and  acts  of  violence  committed  against  them  as  if 
they  were  enemies,  are  not  acts  of  legitimate  warfare  but 
crimes.  Thus  where  an  officer  in  command  of  a  regiment  of 
volunteer  cavalry,  made  a  sudden  and  ^dolent  attack  ui)on  a 

^  See  Worcester  v.  Georgia,  9  Peters,  515. 


294  INJUNCTION — INSANITY. 

village  of  friendly  Indians,  (who,  having  been  in  a  state  of 
partial  hostility  had  returned  to  their  allegiance  and  had  in 
fact  been  recognized  as  entitled  to  i:)rotection  by  the  military 
authorities,)  and  caused  the  massacre  of  several  hundred  i)er- 
sons  of  whom  the  larger  portion  were  women  and  children,^ — 
lield  that  his  act  was  wholly  unauthorized  and  criminal;  and 
in  view  of  the  fact  that  by  reason  of  the  expiration  of  the 
term  of  his  regiment  he  had  been  mustered  out  of  the  service 
before  he  could  be  brought  to  trial  by  court  martial, — advised 
that,  as  a  vindication  of  the  good  name  of  the  army  and  the 
reputation  of  the  government,  which  this  atrocious  act  had 
compromised,  there  be  issued  from  the  War  Department  a 
General  Order  setting  forth  briefly  the  circumstances  of  the 
crime  and  so  denouncing  it  as  to  discharge,  as  far  as  possi- 
ble, the  military  administration  from  responsibility  therefor. 
XYII,  424. 

See  twenty  SECOND  ARTICLE  $  3. 
FORTY  SECOND  ARTICLE. 
SIXTY  THIRD  ARTICLE  $  5,  6. 


INJUNCTION. 

See  CIVIL  PROCESS  $  4. 

INSANITY. 

1.  Where  indications  of  insanity  are  developed  by  the  ac- 
cused in  the  course  of  a  trial  by  court  martial,  the  court  will 
properly  suspend  proceedings  and  report  the  facts  to  the  con- 
vening* authority,  adjourning  meanwhile  to  await  his  orders.^ 
XXXIII,  661. 

2.  Where  the  behaviour  or  testimony  of  a  witness,  w^hile 
on  the  stand,  gives  indications  of  mental  derangement,  or 

^  See  this  raid  upon  Cheyenne  Indians  in  Colorado,  known 
as  the  "  Sandy  Creek  Massacre,"  described  and  denounced  in 
the  Eeport  of  the  Congressional  "Committee  on  the  Conduct 
of  the  War,"  of  May  4,  1865. 

^  See  a  case  of  this  nature,  where  this  course  was  pursued, 
in  G.  C.  M.  O.  39,  Dept.  of  the  Missouri,  1868.  As  to  the 
similar  practice  of  the  civil  courts,  see  People  v.  Ah  Ying,  42 
Cal.  19  J  also  Tatfe  v.  State,  23  Ark.  34. 


INTEREST — INTENTOE.  295 

pseudoma7iia\  (morbid  propensity  to  falsify,)  his  examination, 
even  in  the  absence  of  objection  by  the  x>rosecution  or  defence, 
should  in  general  be  susi>ended  by  the  court,  and  the  facts 
reported  to  the  convening  authority  for  his  direction  or  other 
action.  XXX,  539.  (See  Witness  §  8.] 
See  EESIGNATION  $  4. 

INTEREST. 

See  claims  $  5. 

INTERPRETER. 

1.  That  a  member  of  the  court  acted  as  interpreter  on  a 
trial,  held  an  irregularity,  but  one  which  did  not  affect  the 
legal  validity  of  the  proceedings.    IX,  15. 

2.  Where  the  charges  against  a  private  soldier  were  pre- 
ferred by  the  captain  of  his  company,  who  also  acted  not  only 
as  prosecuting  witness  but  as  interj^reter  on  the  trial — held 
a  grave  irregularity  which  might  well  induce  a  disapi^roval 
of  the  proceedings  and  sentence,  unless  it  quite  clearly 
appeared  that  no  injustice  had  been  done  the  accused.^  YII, 
562. 

3.  It  has  been  the  practice  for  interpreters  to  be  sworn  by 
the  judge  advocate  truly  to  interpret  the  testimony  to  be  given 
on  the  trial  or  by  the  witness,  or  in  terms  to  such  effect. 
XXI,  314.  Xo  article  of  war,  however,  or  other  statute, 
requires  or  authorizes  the  administering  of  an  oath  to  inter- 
preters. 

INVENTOR. 

See  compensation  FOR  PROPERTY  TAKEN  FOR  PUBLIC  USE. 

^As  to  this  well-recognized  mania  in  medical  jurispru- 
dence.— see  Wharton  &  Stille  §  185. 

2  That  an  important  witness  on  a  trial  should  not  properly 
be  permitted  to  interpret  the  testimony  of  another  such  wit- 
ness, is  remarked  in  G.  0.  M.  O.  24,  Dept.  of  Texas,  1875. 


296  JUDGE  ADVOCATE. 


J. 


JUDGE   ADVOCATE. 

1.  In  view  of  the  comprehensive  terms  of  the  74th  of  the 
new  code  of  Articles  of  War,  lieJd  (^December,  1879,)  that 
ofScers  empowered  by  Arts.  81  and  82  to  order  regimental  or 
garrison  conrts-martial  were  as  fully  authorized  to  detail  judge 
advocates  for  the  courts  convened  by  them  as  were  the  officers 
who  were  empowered  by  Arts.  72  and  73  to  order  general 
courts.^     XLIII,  100,  221. 

2.  Any  commissioned  officer  may  legally  be  appointed  judge 
advocate  of  a  court  martial.  Thus  a  surgeon,  assistant  sur- 
geon, or  even  a  chaplain,  is  legally  eligible  to  be  so  detailed. 
IX,  377.     [But  see  Medical  Officer  §  2.] 

3.  A  separatejudge  advocate  should  be  appointed  for  each 
general  court-martial  convened  by  a  department,  or  other 
competent,  commander.  The  same  officer  may  indeed  be 
selected  to  perform  the  duties  of  judge  advocate  as  often  as 
may  be  deemed  desirable  by  the  commander,  but  he  should 
be  detailed  anew  for  every  court  martial  on  which  he  acts. 
To  api)oint  in  a  general  order  a  x^articular  officer  to  act  as 

^  This  view  has  been  adopted  and  acted  upon  in  G.  O.  15, 
Hdqrs.  of  Army,  Feb.  27,  1880,  as  follows : 

^' Under  the  provisions  of  the  74th  Article  of  War,  officers 
who  may  appoint  a  Court-Martial  shall  be  comj^etent  to 
appoint  a  Judge  Advocate  for  the  same.  Accordingly,  a 
Judge  Advocate  is  hereafter  to  be  appointed  for  a  Eegi- 
mental  or  a  Garrison  Court-Martial  in  like  manner  as  for  a 
General  Court. 

General  Orders  IsTo.  49,  of  1871,  prescribing  a  form  of  oath 
for  the  Recorders  of  Regimental  and  Garrison  Courts,  is 
rescinded." 

In  an  official  communication,  of  May  13th,  1880,  addressed 
to  the  Comdg.  Gen.  of  the  Mil.  Div.  of  the  Atlantic,  this  order 
is  declared  by  the  Secretary  of  War  to  be  intended  to  be 
mandatory,  not  duectory  merely. 


JUDGE  ADVOCATE.  297 

judge  advocate  for  all  the  courts  to  be  held  in  the  same  com- 
mand would  be  quite  irregular  and  without  the  sanction  of 
precedent.    II,  54;  XVI,  429. 

4.  It  is  competent  for  the  commander  w^ho  has  convened  a 
court  martial  to  relieve  the  judge  advocate  originallj^  detailed 
for  it  and  substitute  another  in  his  place,  and  the  second  may 
in  the  same  manner  be  relieved  by  a  third,  &c.  The  reliev- 
ing, however,  of  a  judge  advocate,  pending  a  trial,  must  in 
general  embarrass  the  prosecution  of  a  case,  and  should  not 
be  resorted  to  if  it  can  well  be  avoided.    V,  550;  YII,  534. 

5.  A  direction  in  an  order  convening  a  general  court  mar- 
tial, that  if  the  judge  advocate  be  prevented  from  attending 
the  junior  member  of  the  court  will  act  in  his  stead,  held 
irregular  and  improper;  the  function  of  a  judge  advocate  as 
prosecuting  ofiicer,  (see  Art.  90,)  not  being  properly  com- 
patible with  that  of  a  member  of  a  court  martial.  And — the 
member  having  acted  as  judge  advocate  in  this  case — advised 
that  the  proceedings,  (though  the  Court  had  still  retained  five 
members,)  be  disapproved  by  the  reviewing  authority.  II, 
60;  XXI,  300.  A  court  martial  has  of  course  no  authority  to 
direct  or  emi^ower  its  junior  member  or  any  other  ofiicer  to 
act  as  its  judge  advocate.  XXYIII,  198.  [See  Court  Mar- 
tial, I  §  IC] 

G.  An  ofiicer  serving  as  judge  advocate  on  the  staff  of  a 
department  or  army  commander  has  as  such  no  authority  to 
act  as  judge  advocate  of  a  court  martial  convened  by  such 
commander.  If  it  is  desired  that  he  should  act  as  judge 
advocate  of  such  a  court,  he  should  be  specially  detailed  for 
the  purpose.    V,  140. 

7.  While  a  civilian  may  legally  be  appointed,  or  rather 
employed,  as  judge  advocate  of  a  court  martial,  such  an 
employment  has,  for  the  past  fifty  years,  been  of  the  rarest 
occurrence  in  the  military  service.^     Civil  judge  advocates 

^The  last  occasions  of  such  employment  are  believed  to 
have  been  those  of  the  trial  of  the  persons  charged  with  com- 
lilicity  in  the  assassination  of  Prest.  Lincoln,  and  the  trial  of 
Major  Hiiddock,  Prov.  Mar.  Uept.,  (see  G.  C.  M.  O.  oijij  and 
505,  War.  Dept.,  1805,)  upon  which  Hon.  J.  xV.  Bingham  and 
Hon.  lloscoe  Conkling  were  respectively  employed  as  judge 
advocates.  For  an  early  case  in  which  a  civilian,  who  was 
afterwards  a  President  of  the  United  {States,  was  employed  as 
judge  advocate,  see  note  to  Member  of  the  Court  §  3. 


298  JUDGE  ADYOCATE. 

have  been  much  more  frequently  employed  for  naval  than 
for  mihtary  courts  martial.^  Ill,  356  j  XVI,  565  5  XX, 
507. 

8.  While  a  judge  advocate  is  not  subject  to  challenge, 
(XXX Y,  618,)  and  it  cannot  affect  the  legal  validity  of  the 
proceedings  of  a  court  martial  that  the  judge  advocate  was 
personally  objectionable  or  hostile  to  the  accused,  (XXVII, 
127  j  XLIII,  106,)  it  is  yet  desirable  to  detail  as  judge  advo- 
cate, if  practicable,  an  officer  who  has  no  considerable  prej- 
udice against  the  party  to  be  tried,  or  any  decided  personal 
interest  in  his  case.  Thus  the  selection  as  judge  advocate  of 
an  officer  who  was  not  only  a  material  witness  for  the  prose- 
cution, but  was  the  next  in  the  line  of  promotion,  and  would 
be  promoted,  in  case  the  accused,  an  officer  of  his  regiment 
of  a  higher  grade,  were  dismissed  by  the  court — remarked 
upon  as  an  unfortunate  one.^    XXI,  177;  XXXI,  361. 

9.  A  judge  advocate  is  not  authorized  to  entertain  charges 
in  the  first  instance  :  he  can  proi)erly  act  upon  charges,  i.  e. 
make  service  of  the  same,  prepare  the  case  for  trial,  &c.,  only 
when  the  charges  are  transmitted  to  him,  for  the  purpose,  by 
the  officer  who  has  convened  the  court  or  detailed  him  as 
judge  advocate.    XLII,  202. 

10.  The  judge  advocate  is  not  unfrequently  directed  to  pre- 
pare or  re -frame  charges  ;  but  where  charges,  already  form- 
ally preferred,  are  transmitted  to  him  for  prosecution,  he 
should  not  assume  to  modify  them  in  material  particulars  in 
the  absence  of  authority  from  the  convening  officer.  While 
he  may  ordinarily  correct  obvious  mistakes  of  form  or  patent 
or  shght  errors  in  names,  dates,  amounts,  &c.,  he  cannot 
without  such  authority,  make  substantial  amendments  in  the 
allegations,  or — least  of  all — reject  or  withdraw  a  charge  or 
specification,  or  enter  a  7iolle  ijrosequi  as  to  the  same,  or  sub- 
stitute a  new  and  distinct  charge  for  one  transmitted  to  him 

^  In  view  of  the  provisions  of  Sec.  17  of  the  Act  of  June  22, 
1870,  (Sec.  189,  Eev.  Sts.,)  transferring  to  the  Department  of 
Justice  the  authority  to  employ  counsel  for  the  executive 
departments,  neither  the  Secretary  of  War  nor  the  Secretary 
of  the  Xavy  is  now  authorized  to  retain  a  civilian  la\Yyer  to 
act  as  judge  advocate  of  a  court  martial.  XIII  Opins.  of 
Attys.  Gen.  514;  XIV  Id.  13. 

2  See  G.  0.  M.  O.  5,  War  Dept.,  1871  j  do  41,  Id.,  1875. 


JUDGE  ADVOCATE.  299 

for  trial  by  the  proper  superior.^    II,  CO;  XXI,  56.     [See 
Court  Martial,  I  §  7 ;  Charge  §  28.] 

11.  A  competent  judge  advocate  will  properly  be  left  by 
the  court  to  introduce  the  testimony  in  the  form  and  order 
deemed  by  him  to  be  the  most  advantageous,  and  generally 
to  bring  on  cases  for  trial  and  conduct  their  prosecution  ac- 
cording to  his  own  judgment.^    X,  358. 

12.  The  duty  of  the  judge  advocate  toward  the  accused 
should  not  be  regarded  as  confined  to  the  limited  i)rovince  of 
"  counsel  for  the  prisoner"  as  the  same  is  defined  in  the  90th 
Article  of  War.  Where  the  accused  is  ignorant  and  inex- 
perienced and  without  counsel — especially  where  he  is  an 
enlisted  man — the  judge  advocate  should  take  care  that  he 
does  not  suffer  upon  the  trial  from  any  ignorance  or  miscon- 
ception of  his  legal  rights,  and  has  full  opportunity  to  inter- 
pose such  plea  and  make  such  defence  as  may  best  bring  out 
the  facts,  the  merits,  or  the  extenuating  circumstances  of  his 
case.     Y,  577. 

13.  For  the  judge  advocate  to  counsel  the  accused,  when  a 
soldier  or  inferior  in  rank,  to  plead  guilty,  must  in  general 
be  unbefitting  and  inadvisable.  But  where  such  plea  is  vol- 
untarily and  intelligently  made,  the  judge  advocate  should 
properly  advise  the  accused  of  his  right  to  offer  evidence  in 
explanation  or  extenuation  of  his  offence,  and,  if  any  such 
evidence  exists,  should  assist  him  in  securing  it.  And  where 
no  such  evidence  is  attainable  in  the  case,  the  judge  advocate 
should  still  see  that  the  accused  has  an  opportunity  to  present 
a  "  statement,"  written  or  verbal,  to  the  court,  if  he  has  any 
desire  to  do  so.    Y,  77. 

14.  A  judge  advocate  of  a  court  martial  has  no  authority 
to  place  in  arrest  an  officer  or  soldier  about  to  be  tried  by  the 
court,  or  to  compel  the  attendance  of  the  accused  before  the 
court  by  requiring  a  non-commissioned  officer  to  bring  him 
or  otherwise  :  these  are  duties  which  devolve  upon  the  con- 
vening authority,  or  upon  the  post  commander  or  other  proper 

'  See  G.  O.  64,~Dept.  of  the  Cumb^and,"T8G77  do.  98,  Id., 
18G8 ;  do.  85,  Dept.  of  the  South,  1871 ;  G.  C.  M.  O.  30,  42, 
Dept.  of  the  Platte,  1877;  do.  13,  Id.,  1878;  do.  48,  Mil.  Div. 
of  Pacific  &  Dept.  of  Cal.  1880. 

2  Compare  G.  C.  M.  O.  97,  Dept.  of  Dakota,  1878;  do.  38, 
Dept.  of  Texas,  1878;  and — as  to  the  civil  practice — United 
States  V.  Burr,  1  Burr's  Trial,  S5,  409;  Lynch  v.  Benton,  3 
Eob.  105;  Davany  v,  Koon,  45  Miss.  71. 


300  JUDGE   ADVOCATE. 

officer  in  whose  custody  or  commaud  the  accused  is  at  the 
time.     XXVIII,  531.     [See  Court-Martial,  I  §  8,  note.] 

15.  It  is  strictly  the  proper  practice  for  a  judge  advocate 
not  to  give  his  opinion  ui^on  a  i^oint  of  law  arising  upon  a 
military  trial,  unless  the  same  may  be  required  by  the  court. 
This  practice,  however,  is  often  departed  from,  and  the  opin- 
ions of  judge  advocates,  suitably  tendered,  are  in  general 
received  and  entertained  by  the  court  without  objection, 
whether  or  not  formally  called  for.  But  where  the  court  does 
object  to  the  giving  of  an  oi)inion  by  the  judge  advocate,  he 
is  not  authorized  to  attempt  to  give  it,  and  of  course  not  au- 
thorized to  enter  it  upon  the  record.  Whether  the  fact — that 
the  opinion  was  offered  and  objected  to  by  the  court — shall 
be  entered  upon  the  record,  is  a  matter  for  the  court  alone  to 
decide.  It  is,  however,  certainly  the  better  i)ractice  that  all 
the  proceedings,  even  those  that  are  irregular ,  which  trans- 
pire in  connection  with  the  trial,  should  be  set  out  in  the 
record  for  the  insi)ection  of  the  reviewing  authority.  XXYI, 
251.     [See  Eecord,  1,  a.] 

IC.  In  our  military  i^ractice,  (deemed  in  this  respect  to  be 
oi)en  to  criticism,)  the  judge  advocate  invariably  remains 
with  the  court  when  closed  for  deliberation  upon  the  findings 
and  sentence :  this,  in  order  that  he  may  advise  the  court 
upon  any  question  in  regard  to  which  his  oi^inion  is  desired, 
and  assist  it  in  making  references  to  the  testimony  and  pro- 
ceedings in  the  record,  and  may  also  complete  the  record  by 
the  proper  entry  of  the  judgment  as  pronounced.  XXYIII, 
353. 

17.  It  is  one  of  the  duties  of  the  judge  advocate  to  prepare 
the  '^  complete  and  accurate  record  "  which  '^  every  court  mar- 
tial "  is  required,  by  par.  891  of  the  Army  Eegulations,  to 
^'  keep."  He  should,  if  practicable,  complete  the  record  of 
each  day's  proceedings  in  time  to  be  submitted  to  the  court 
at  the  next  day  or  next  session  for  ai)proval  or  correction. 
The  record  is  the  record  of  the  court^  and  the  judge  advocate 
is  subject  to  the  direction  of  the  court  in  preparing  it.  XXI, 
G79. 

18.  An  absence  of  the  judge  advocate  from  the  court  dur- 
ing the  trial  does  not  per  se  affect  the  validity  of  the  proceed- 
ings, but  is  of  course  to  be  avoided  if  i^ossible.  When  the 
judge  advocate  is  obliged  to  temiiorarily  absent  himself,  the 


JUDGE  ADVOCATE.  301 

court  should  iu  general  susi)end  tlie  proceedings  for  tlie  time ; 
or,  if  his  absence  is  to  be  i)rolonged,  should  adjourn  for  a  cer- 
tain i)eriod.     XXI,  177. 

19.  Should  the  judge  advocate  be  required  to  give  evidence 
as  a  witness,  the  clerk  or  reporter  of  the  court  may  go  on  to 
record  his  testimony  while  on  the  stand ;  or,  if  there  be  no 
clerk  or  reporter,  he  may  record  his  own  testimony  as  that  of 
any  other  witness.    XXI,  177. 

20.  A  judge  advocate  of  a  court  martial  may  be  detailed  to 
perform  other  duty,  as  that  of  officer  of  the  day  or  member  of 
a  board  of  survey,  if  such  duty  will  not  interfere  with  his 
duties  as  judge  advocate.  But  in  general  of  course  no  duties, 
in  addition  to  those  incidental  to  his  function  as  judge  advo- 
cate, should  be  imposed  upon  him  pending  an  important  trial. 
XXIX,  273. 

21.  The  judge  advocate  in  our  practice  is  entitled  to  the 
closing  argument  or  address  to  the  court,  and  he  may  present 
an  address  although  the  accused  waives  his  right  to  present 
any  ;  the  function  of  the  judge  advocate,  at  this  stage  of  the 
proceedings,  not  being  confined  merely  to  a  replying  to  the  ac- 
cused. XXXII,  497.  The  judge  advocate  in  his  address  is 
not  authorized  to  read  to  the  court  evidence  or  written  state- 
ments not  introduced  upon  the  trial  and  which  the  accused 
has  had  no  opportunity  to  controvert  or  comment  upon. 
XXII,  238. 

22.  Where  there  have  been  two  or  more  judge  advocates 
successively  detailed  in  the  course  of  a  trial,  the  one  who  is 
acting  at  the  close  is  the  one,  (and  the  only  one,)  required  to 
authenticate  the  i)roceedings  by  his  signature.     II,  118. 

23.  The  only  authority  for  the  employment  of  reporters  for 
courts-martial  is  that  contained  in  Sec.  1203,  Eev.  Sts.,  which 
authorizes  the  judge  advocate  of  a  military  court  to  appoint  a 
reporter  for  such  court.  In  view  of  this  statute,  lield  that  the 
appointment,  by  a  judge  advocate  on  the  staff  of  a  department 
commander,  of  a  person  to  act  as  rei)orter  for  all  the  courts 
to  be  convened  in  the  department,  was  in  contravention  of 
law  and  of  no  effect.    XI,  301. 

21.  For  the  court  or  the  president  of  the  court  to  i>lace  or 
order  the  judge  advocate  in  arrest  would  be  an  unauthorized 
proceeding.  The  court  indeed,  in  a  proi)er  case  under  Art. 
80,  might  proceed  against  its  judge  advocate  as  for  a  con- 


302  JURISDICTION. 

tempt.  But  an  arrest  could  not  be  imposed  nor  a  punishment 
executed  in  the  case  of  such  officer,  except  through  the  con- 
vening authority  or  other  competent  commander.  Ill,  603  ; 
XXI,  629. 

25.  Where  the  court  was  convened  by  a  military  officer — 
as,  in  a  case  of  a  general  court,  the  general  of  the  army  or  a 
department  or  army  commander — it  is  the  duty  of  the  judge 
advocate,  \\\)ou  the  completion  of  the  record,  to  transmit  the 
same  to  such  officer,  (or  his  successor  in  command,)  for  the 
I^roper  action.  Where  the  court  was  convened  by  the  Presi- 
dent, it  is  the  duty  of  the  judge  advocate  to  transmit  the 
completed  proceedings  directly  to  the  Judge  Advocate  Gen- 
eral,^ in  order  that,  as  the  staff  officer  of  the  President,  he  may 
exercise  the  revisory  function  reposed  in  him  by  Sec.  1199, 
Eev.  Sts.2    XLII,  457. 

26.  Up  to  the  time  of  the  dissolution  of  the  court  for  which 
he  is  appointed,  a  judge  advocate  is  competent  to  administer 
an  oath  to  an  affiant  or  deponent,  in  cases  of  public  property 
lost  or  destroyed,  under  the  circumstances  indicated  in  par, 
1031  of  the  Army  Eegulations.  XXXIII,  450.  [See  Oath, 
I  §2.] 

See  counsel,  II. 

COURT  MARTIAL,  I  $  17. 

PROSECUTOR. 

REVISION  $  3,6. 

WITNESS  $  5, 9, 13, 21, 22, 28, 33. 


JURISDICTION. 

See  cession  OF  JURISDICTION. 
CIVIL  PROCESS  $  4,5. 
COURT  MARTIAL,  II. 
LAW  OF  WAR  §  12. 
MILITARY  COMMISSION,  IL 


^  See  G.  O.  72,  War  Dept.,  1873;  do.  39,  Hdqrs.  of  Army, 
1877. 

^It  may  here  be  noted  that  the  One  hundred  and  thirteenth 
Article  of  War,  the  only  statute  relating  to  the  forwarding, 
by  judge  advocates,  of  the  proceedings  of  general  courts,  is 
incomi^lete,  and  not  in  harmony  with  the  provisions  of  Arts. 
101  and  109.  The  practice  on  the  subject — as  determined  by 
par.  896,  Army  Eegulations  and  the  supplementary  Orders 
indicated  in  the  foregoing  note — represents  quite  accurately 
the  existing  law,  and  is  as  stated  in  the  text. 


LAND— LAW  OF  WAH.  303 


L. 


LAND. 

CESSION  OF  JURISDICTION. 

MILITARY  RESERVATION. 

PUBLIC  PROPERTY— DISPOSITION  OF  $  1-3,  5-12. 

LARCENY. 

See  SIXTY  SECOND  ARTICLE  $  2,  4. 
PLEA  $  6. 


LAWFUL  COMMAND  OR  ORDER. 

See  TWENTY  FIRST  ARTICLE  $  7,  8. 
TWENTY  SECOND  ARTICLE  $  2. 


LAW  OF  WAR. 

1.  The  law  of  war  is,  in  brief,  the  law  of  military  govern- 
ment and  authority  as  exercised  in  time  of  war,  foreign  or 
civil.  Its  usual  field  is  the  territory  of  a  conquered  country 
in  the  occupation  of  a  hostile  army  :  it  is  sometimes  extended 
however,  though  generally  in  a  milder  form,  to  localities 
under  ^'martial  law."  [See  Martial  Law  §  1.]  It  is  prop- 
erly a  part  of  the  law  of  nations,  though  its  api^lication  may 
be  materially  varied  by  the  circumstances  of  the  country  or 
the  people  brought  under  its  sway. 

It  is  a  fundamental  principle  of  the  law  of  war  that,  during 
a  state  of  war,  all  commercial  intercourse  between  the  bellig- 
erents is  interdicted  and  made  illegal  except  when  and  where 
it  may  be  expressly  authorized  by  the  Government.  During 
the  late  civil  war,  which,  as  respects  the  application  in  gen- 
eral of  the  laws  and  usages  of  war,  was  assimilated  to  a  for- 


304  LAW  OF  WAR.  • 

eigu  war/  all  trade  and  intercourse  witli  the  enemy,  except 
so  far  as  i)ermitted  by  the  President  under  authority  from 
Congress,  (or  in  rare  cases  by  a  commanding  general  in  the 
field  representing  the  President,)  was  necessarily  suspended.^ 
XI,  553,  G47,  6515  XIV,  241;  XV,  275;  XVI,  572;  XIX, 
673 ;  XXX,  346. 

2.  As  to  the  x>rincipal  forms  of  violation  of  the  law  of  non- 
intercourse,  and  other  violations  of  the  laws  of  war,  made 
the  subject  of  trial  by  military  commission  during  the  late 
war,  see  Military  Commission,  II  §  3. 

3.  Where  a  chaplain  of  the  confederate  army  came  within 
the  lines  of  the  IT.  S.  army  during  the  war  without  the  authority 
of  the  federal  government,  and  was  apprehended,  tried  and 
convicted  of  the  offence  involved,  and  sentenced,  (December, 
1864,)  to  be  confined  during  the  war,  advised  that  while  his 
act  was  in  violation  of  the  law  of  war,  yet,  as  it  ai)peared 
that  his  only  object  in  coming  within  our  lines  was  to  pur- 
chase bibles,  his  punishment  might  well  be  remitted  on  his 
taking  the  usual  oath  of  allegiance  to  the  federal  government. 
XI,  553. 

4.  Offences  against  the  law  of  non-intercourse  between  the 
belligerents  in  time  of  war  are  no  less  such  when  committed 
by  foreigners  than  when  committed  by  citizens.  Thus  where 
certain  persons  made  their  way  early  in  the  late  war  from 

'  See  Prize  Cases,  2  Black,  666-9 ;  Dow  v.  Johnson,  10  Otto, 
164 5  Brown  v.  Hiatt,  1  Dillou,  372 ;  Phillips  v.  Hatch,  Id.  571 ; 
Sanderson  v.  Morgan,  39  X.  York,  231 ;  Perkins  v.  Eogers,  35 
Ind.  124 ;  Leathers  i\  Com.  Ins.  Co.,  2  Bush,  639 ;  Hedges  v. 
Price,  2  West  Ya.  192. 

2  The  Oachita  Cotton,  6  Wallace,  521;  Cappell  v.  Hill,  7  Id. 
542,  554;  McKee  v.  United  States,  8  Id.  163 ;  United  States 
V.  Grossmayer,  9  Id.  72  ;  Montgomery  i\  United  States,  15  Id. 
ode  ;  Hamilton  v.  Dilliu,  21  Id.  73;  Mitchell  v.  United  States, 
Id.  350;  Matthews  v.  McStea,  1  Otto,  7;  Dow  v.  Johnson,  10 
Id.  164 ;  Kershaw  v.  Kelsey.  100  Mass.  561 ;  Lieber's  Instruc- 
tions, CI.  O.  100,  War  Dept'.,  1863,  par.  86.  Beside  the  sus- 
pension incident  to  the  state  of  war,  a  suspension  of  commer- 
cial intercourse  with  the  enemy  was  specially  directed  by  Act 
of  Congress  of  July  13, 1861,  and  i)roclaimed  by  the  President 
on  Aug.  16,  1861.  By  authority  conferred  by  the  same  stat- 
ute. General  Regulations,  concerning  connnercial  intercourse 
with  and  in  tlie  States  declared  in  insurrection,  were  approved 
by  the  President,  January  26,  1864,  and  published  in  G.  O. 
53,  Dept.  of  the  Gulf,  of  April  29,  1864. 


LAW  OF  WAR.  305 

Scotland  to  South  Carolina,  engaged  for  a  considerable  period 
in  the  manufacture  of  treasury  notes  for  the  confederate  au- 
thorities, and  at  the  end  of  their  employment  came  secretly  and 
without  authority  into  our  lines  with  the  design  of  returning 
to  their  home, — held  that,  though  British  subjects,  they  had 
identified  themselves  with  the  cause  of  the  enemy,  and  were 
l)roperly  amenable  to  trial  for  the  oftence  of  i)enetrating  our 
military  lines  in  violation  of  the  laws  of  war.     XV,  112. 

5.  Where  a  i)arty  arrested  in  attemi^ting  witliout  authority 
to  cross  the  Potomac  for  the  purpose  of  holding  communica- 
tion with  persons  in  the  enemy's  country,  was  ordered  by  the 
Department  Commander — his  offence  having  been  committed 
in  a  district  in  military  occupation — to  be  placed  under  mili- 
tary surveillance  and  to  furnish  a  bond  with  sufficient  sureties, 
obliging  him  not  to  attempt  again  during  the  war  to  join  or 
hold  intercourse  with  the  enemy, — held  that  such  i^roceeding 
was  warranted  by  the  laws  and  customs  of  war.     Ill,  255. 

6.  Two  soldiers  of  the  United  States  army  having  been 
seized  and  delivered  across  the  lines  to  the  enemy,  by  a  party 
of  civilians^  in  a  i^ortion  of  one  of  the  insurrectionary  States 
in  the  occupation  of  the  federal  forces,  an  equal  number  of 
citizens  of  the  district  were  ordered  by  the  commanding  gen- 
eral to  be  arrested  and  held  till  the  offenders,  Avho  meanwhile 
had  taken  refuge  with  the  enem}',  should  be  surrendered  for 
trial.  Held  that  such  an  act  of  retaliation  was  warranted  by 
the  laws  and  usages  of  war.     IX,  210. 

7.  There  can  be  no  doubt  as  to  the  authority  of  the  com- 
mander of  an  army,  in  occupation  and  government  of  the 
enemy's  country,  to  supi)ress  a  newspaper  or  other  publica- 
tion deemed  by  him  to  be  injurious  to  the  public  interests  in 
exciting  opposition  to  the  dominant  authority  or  encouraging 
the  support  of  the  enemy's  cause  on  the  part  of  the  inhabit- 
ants. A  newspaper  may  be  a  powerful  agent  for  such  a  pur- 
pose, and,  when  it  is  so,  it  may,  under  the  laws  of  war,  as 
legally  be  silenced  as  may  a  fort  or  battery  of  the  enemy  in 
the  field.     II,  585. 

8.  Held,  (January,  18G5,)  that  a  system  of  correspondence 
which  had  been  concerted  and  maintained  between  northern 
and  southern  newsj^apers  by  means  of  an  interchange  of  pub- 
lished communications  entitled  '^  Personals,"  was  an  evasion 

20  D 


306  LAW  OF  WAE. 

of  the  rule  interdicting  Intercourse  with  the  enemy  in  time 
of  war^  and,  not  being  within  the  regulations  established  for 
correspondence  by  letter  between  the  lines  by  flag  of  truce, 
should  not,  however  innocent  might  be  many  or  most  of  the 
communications,  be  sanctioned  by  the  government,  but  that 
the  proprietors  of  the  northern  newspapers  concerned  should 
be  notified  that  unless  the  practice  were  discontinued,  they 
would  be  liable  to  be  proceeded  against  for  promoting  corres- 
Ijondence  with  the  enemy  in  violation  of  the  laws  of  war  or 
of  the  special  Act  of  February  25,  1863.^     XII,  250. 

9.  The  taking  possession,  by  the  order  of  the  commander 
of  the  military  department  at  Xew  Orleans,  for  the  use  of  the 
military  service  in  the  i)rosecution  of  the  war,  of  moneys  be- 
longing to  enemies,  on  dej^osit  in  the  banks  of  that  city, 
while  occupied,  (in  1863,)  by  our  army,  Jield  an  act  justified 
by  the  law  of  war.^    XIX,  612. 

10.  Contributions  of  money  exacted  from  the  enemy  by 
competent  military  authority,  being  justified  by  the  law  of 
war  and  conquest,^  held  that  a  tax  of  five  dollars  per  bale, 
levied,  (in  1864,)  by  the  military  commander  at  Xew  Orleans, 
Gen.  Canby,  upon  cotton  brought  into  that  city,  and  applied 
to  hospital,  sanitary  and  charitable  purposes,  was  authorized 
under  the  discretionary  j^ower  with  which  such  a  commander 
was  properly  invested  in  time  of  war.'^    XYIII,  66S. 

11.  It  is  a  i3rincii)le  of  the  law  of  war  that  the  municipal 
laws  of  a  conquered  country  continue  in  force  during  the 
military  occupation  by  the  conqueror,  except  in  so  far  as  the 
same  may  necessarily  be  suspended  or  their  operation  be  af- 

'  See  G.  O.  10,  Dept.  of  the  East,  1865. 

-  See  New  Orleans  v.  Steamboat  Company,  20  Wallace,  394 ; 
Witherspoon  v.  Farmers'  Bk.2  Duvall,  497.  But  in  Planters' 
Bank  v.  Union  Bk.  16  Wallace,  483,  this  particular  order  was 
held  to  have  been  an  exceeding  of  authority,  not  because 
unauthorized  by  the  law  of  war,  but  for  the  reason  that  a 
previous  commander — Gen.  Butler — by  his  proclamation  on 
fii'st  occupying  the  city,  of  May  1,  1862,  had  pledged  the 
government  to  the  holding  inviolate  of  all  rights  of  ])roperty. 
And  see  The  Venice,  2  Wallace,  258. 

^  Lewis  V.  McGuire,  3  Bush,  202;  Clark  v.  Dick,  1  Dillon,  8. 
And  see  Maj.  Gen.  Scott's  order,  (G.  O.  395,  Ildqrs.  of  Army, 
1847,)  levying  assessments  ui)on  Mexican  communities  for  the 
sui^i^ort  of  the  military  government  and  occupation. 

*  See  Hamilton  v.  Dillin,  21  Wallace,  73. 


LAW  OF  WAR.  307 

fected  by  Lis  acts.^  So,  where  a  testator  liad  executed,  in 
Yicksburg,  Mississippi,  after  its  capture  and  during  its  occu- 
pation by  our  forces,  a  will  devising  real  estate ;  but  such  will, 
in  not  being  attested  by  the  required  number  of  witnesses, 
was  invalid  under  the  State  law ;  licld^  that  as  this  law  was 
in  no  respect  modified  upon  the  capture,  the  devisee  under 
the  will,  however  loyal,  could  not  properly  be  invested  by 
military  authority  with  the  legal  title  to  such  estate  against 
the  heirs  at  law.    XIX,  474. 

12.  It  is  authorized  by  the  laws  of  war  for  a  military  offi- 
cer commanding  in  time  of  war  in  a  region  in  military  occu- 
pation, and  where  the  ordinarj^  courts  are  closed  by  the  ex- 
igencies of  the  war,  to  appoint  a  special  court  or  judge  for  the 
determination  of  cases  not  properly  cognizable  by  the  ordi- 
nary military  tribunals.  In  the  late  war  such  courts  were  not 
unfrecxuentl}'  constituted  and  were  commonly  designated  j)ro- 
vost  courts.  II,  14  j  XV,  51 9.  Such  courts  had  no  jurisdiction  of 
purely  military  offences,  (i.  e.  offences  which  the  Articles  of 
War  make  cognizable  by  court  martial,)  and  were  therefore 
not  properly  authorized  to  impose  forfeitures  of  pay  or  other 
strictly  military  inmishments  ujion  officers  or  soldiers  of  the 
army.'  YI,G35;  VIII,  G38;  X,  o9,5G0  5  XIII,  55, 114.  These 
courts  were  in  general  resorted  to  as  substitutes  for  the  ordi- 
nary police  courts  of  cities,  and  their  jurisdiction  was  in  gen- 
eral confined  to  cases  of  breaches  of  the  peace  and  of  viola- 

^'^By  the  well  recognized  principles  of  international  law, 
the  mere  military  occupation  of  a  country  by  a  belligerent 
power  or  a  conqueror,  does  not  ipso  facto  displace  the  munic- 
ipal laws.  Such  conqueror  or  belligerent  occupier  may  sus- 
pend or  supersede  them  for  the  time  being,  but,  in  the  absence 
of  orders  to  that  effect,  they  remain  in  force."  W'ingfield  r. 
Crosby,  5  Cold.  L*4G.  ''Supreme  military  authority  in  a  city 
is  not  incompatible  with  the  existence  and  authority  of  courts 
of  civil  jurisdiction  and  procedure."  Pepin  r.  Lachenmeyer, 
45  X.  York,  27.  And  see  Kimball  v.  Taylor,  2  \Yoods,  37  ; 
Eutledge  v.  Fogg,  3  Cold.  554;  Hefferman  r.  Porter,  G  Id. 
391 ;  Murrell  v.  Jones,  40  Miss.  5()(y ;  Dow  v.  Johnson,  infra. 
But  where  the  courts  of  a  hostile  country  are  left  open  by 
the  conqueror,  it  is  only  the  citizens  of  such  country  that  are 
subject  to  their  jurisdiction  :  the  officers  and  soldiers  of  the 
occupying  army  are  in  no  manner  amenable  to  the  same. 
This  principle  has  recently  been  illustrated  by  the  Supreme 
Coiu-t  in  the  cases  of  Coleman  v.  Tennessee,  7  Otto,  509 ; 
Dow  V.  Johnson,  10  Otto,  158, 1G6. 


308  LAW  OF  WAR. 

tion  of  such  civil  ordinances  or  military  regulations  as  might 
be  in  force  for  the  government  of  the  locality.  Some  of  these 
courts,  however,  took  cognizance,  in  the  course  of  their  exist- 
ence, of  cases  of  very  considerable  importance,  civil  as  well 
as  criminal.^    XIII,  392. 

See  ninth  ARTICLE. 

MILITARY  COMMISSION,  I  $  1 ;  ID.  II  $  1- 

^  See  the  following  General  Orders  establishing  or  relating 
to  Provost  Courts  and  similar  tribunals:  G.  O.  41,  Dept.  of 
Virginia,  18G3;  do.  45,  Dept.  of  the  Gulf,  1863;  do.  6,  77,  Id. 
18G4 ;  do.  103,  146,  Dept.  of  Washington,  1865 ;  do.  39,  Id. 
1866 )  do.  102,  Dept.  of  the  South,  1865 ;  do.  30,  38,  49,  ^S^ 
Dept.  of  S.  Carolina,  1865  ;  do.  37,  Id.  1866  ;  do.  31,  Dept.  of 
the  Mississippi,  1865 ;  do.  12,  Dei^t.  of  Arkansas,  1865  •,  do. 
5,  Mil.  Div.  of  the  James,  1865;  do.  31,  First  Mil.  Dist.,  1867 ; 
Circ,  Second  Id.  May  15,  1867  ;  G.  O.  29,  61,  Id.  1868 ;  do.  4, 
Fifth  Id.  1869  ;  also  Gen.  Wool's  G.  O.  516  of  1847. 

While  the  majority  of  these  special  tribunals  were  confined 
to  the  exercise  of  such  functions  as  are  commonly  devolved 
upon  police  or  justices'  courts,  their  authority,  when  emi^ow- 
ered  for  the  purpose  by  a  competent  military  commander,  to 
take  cognizance  of  important  civil  actions  has  been  affirmed  by 
the  Supreme  Court  of  the  United  States  in  the  case  of  Mechs'. 
&  Traders'  Bk.  v.  Union  Bk.,  22  Wallace,  276,  in  which  a 
i' Provost  Court,'^  established  at  ]S"ew  Orleans  by  an  order  of 
the  department  commander,  of  May  1,  1862,  was  held  to  be 
a  lawful  tribunal,  and  a  judgment  rendered  by  it  in  an  action 
for  the  recovery  of  $130,000,  money  borrowed  by  one  bank 
from  another,  was  recognized  as  legal.  [See  this  case  also  in 
25  La.  An.  387.] 

So,  the  authority  of  the  ^'Provisional  Court  of  Louisiana," 
(which  succeeded  the  "Provost  Court '^  last  indicated,  and 
was  established  by  the  Fresident,  in  an  Executive  Order  of 
Oct.  20,  1862,)  to  determine  a  cause  in  admiralty,  was  affirmed 
by  the  United  States  Supreme  Court  in  The  Grapeshot,  9 
Wallace,  129,  and  later  its  jurisdiction  in  a  civil  action  on  a 
mortgage  debt  was  recognized  by  that  tribunal  in  Burke  v. 
Miltenberger,  19  Wallace,  519.  [And  see  the  same  case,  as 
Burke  v.  Tregree,  in  22  La.  An.  629.]  The  authority  of  the 
same  court  to  take  cognizance  of  a  case  of  murder  and  one 
of  arson,  (as  also  of  civil  controversies,)  was  maintained  in 
an  elaborate  opinion  of  its  judge,  Hon.  C.  A.  Peabody,  (in 
1865,)  in  the  cases  of  the  United  States  v.  Eeiter  &  Louis,  re- 
l^orted  in  13  Am.  Law  Peg.  534. 

The  civil  jurisdiction  of  a  similar  war  court — the  "  Com- 
mission" established  by  the  Department  Commander  in 
Memi)his  in  1863 — was  similarly  recognized  in  Ilefferman  v. 
Porter,  6  Cold.  391.    And  as  to  the  full  authority  of  this 


LEASE — LEAVE   OF  ABSENCE.  309 


LEASE. 

See  CONTRACT  ^  1,  12. 

PUBLIC  PROPERTY— DISPOSITION  OF  §  1, 


LEAVE  OF  ABSENCE. 

1.  The  provision  of  tbe  Act  of  July  29,  1876,  to  tlie  effect 
that  officers  sliall  enjoy  the  extended  leaves  of  absence 
accorded  by  the  Act,  ''  without  deduction  of  pay  or  allow- 
ance," held  to  entitle  such  officers  to  receive  their  allowance 
for  quarters,  as  well  as  their  full  pay  for  and  during-  the  period 
of  absence.  The  word  ''  allowance"  must  mean  something — 
must  mean  some  pecuniary  emolument  distinct  from  pay ;  and 
the  only  allowance  or  pecuniary  emolument  allowed  to  officers, 
at  the  date  of  the  Act  or  since,  is  the  allowance  for  quar- 
ters.^   XLIII,  277. 

tribunal  as  a  substitute  for  the  ordinarj^  civil  courts  of  the 
locality,  see  also  State  v.  Stillman,  7  Cold.  341.  [But  see, 
contra,  Walsh  v.  Porter,  12  Heisk.  401.] 

In  the  cases  thus  sustaining  the  action  of  special  tribunals 
during  the  late  war,  the  courts  in  general  refer  to  the  earlier 
and  leading  case  of  Leitensdorfer  r.  ^Yebb,  20  Howard,  170, 
in  which  was  affirmed  the  authority  of  the  courts  estabUshed 
in  1840  in  New  Mexico  as  a  i^art  of  the  system  of  civil  gov- 
ernment instituted  by  Gen.  Kearney,  the  military  command- 
ant. [With  this  case  consult  also  United  States  v.  Eice,  4 
Wheaton,  254  ;  Cross  r.  Hairison,  10  Howard,  104.] 

The  reasoning  ux>on  which  the  above  cited  later  rulings  is 
based  is, — that  the  authority  to  create  courts  with  a  civil  as 
well  as  a  criminal  jurisdiction  in  a  conquered  country  in  mil- 
itary occupation  attaches  to  the  dominant  power  by  the  law 
of  war  and  of  nations,  as  an  incident  to  the  power  to  estab- 
lish a  military  government ;  that  it  is  not  only  the  right  but 
the  duty  of  the  conqueror  to  institute  such  courts  ''  for  the 
security  of  persons  and  i)roperty  and  for  the  administration 
of  justice";  and  that  when  during  the  late  war  such  courts 
were  created  by  commanding  generals — such  as  the  com- 
manders of  separate  departments  or  armies — the  order  of  the 
commander  was  to  be  presumed  to  be  the  order  and  act  of  the 
President. 

^  Opposed  to  this  view  are  the  opinions  of  the  Solicitor  Gen- 
eral, of  January  10,  1879,  (XVI  Ojjins.  — ,)  and  of  the  Second 


310  LESSER   mCLUDED    OFFENSE. 

2.  Held,,  in  estimating  the  period  of  tlie  leave  of  absence  to 
which  a  certain  officer  would  be  entitled,  under  the  pro\isions 
of  Sec.  1265,  Eev.  Sts.,  and  the  Act  of  July  29,  1876,  without 
incurring  a  deduction  from  his  pay,  that  a  period  during 
which  he  was  permitted  to  be  absent  from  his  post,  while 
under  a  sentence  of  suspension  from  rank,  was  not  x)roperly 
to  be  taken  into  account ;  such  absence  not  being  an  absence 
of  an  ^'  officer  on  duty  "  in  the  sense  of  the  Act  of  1876,  but 
an  absence  pending  the  execution  of  a  sentence  which,  during 
its  term,  separated  the  officer  from  all  duty.     XLII,  306. 

3.  Where  an  officer  was  granted  by  his  department  com- 
mander a  si^ecific  leave  of  absence  from  his  station,  and  was 
thereupon  furnished  with  an  order  to  proceed  on  a  special 
detail  to  Washington,  with  authority  to  date  his  leave  from 
his  arrival  at  Washington;  held  that  he  was  not  thereby 
authorized  to  consider  his  leave  as  terminating  at  Washing- 
ton, or  his  case  as  excepted  from  the  general  rule  of  par.  176 
of  the  Army  Eegulations,  which  requires  that  the  exi^iration 
of  an  officer's  leave  ^'must  find  him  at  his  station;"  and 
therefore  that,  on  his  return  to  Washington  at  the  end  of  his 
leave,  he  did  not  revert  to  the  status  of  being  on  duty,  and 
was  not  entitled  to  an  order,  (drawing  mileage,)  to  return  to 
his  station,  but  was  in  a  status  of  being  absent  without  leave, 
and  was  subject  to  a  consequent  loss  of  pay  till  he  duly 
reported  at  his  station.^    XLIII,  281. 

As  to  the  right  to  mileage  of  an  officer  whose  leave  of 
absence  is  terminated  by  an  order  requiring  him  to  return  to 
his  station,  &c., — see  Mileage  §  1,  2,  3. 

LESSER  INCLUDED  OFFENCE. 

See  one  HUNDRED  AND  SECOND  ARTICLE  $  2. 
FINDING  ^  8. 

sentence  and  punishment  ^  5. 

Comptroller  of  the  Treasury,  of  December  8, 1879.  The  ques- 
tion involved  is  now  pending  before  the  Court  of  Claims,  hav- 
ing been,  on  January  27,  1880,  submitted  thereto  by  the  Sec- 
retary of  War,  under  Sec.  1063,  Rev.  Sts. 

^  Compare  opinion  of  Court  of  Claims  in  Andrews  v.  United 
States,  15  Ct.  CI.  — 


LICENSE — LOSS  OF  FILES.  311 


LICENSE. 

Held  that  an  officer  of  tlie  army,  duly  charged  with  the  duty 
of  making  a  sale  of  damaged,  «S:c.,  medical  supplies  under  the 
authority  of  Sec.  1241,  Rev.  Sts.,  (by  which  the  President  is 
empowered  to  order  such  sales  in  certain  cases,)  could  not 
lawfully  be  required  to  take  out  and  pay  for  a  license  as  a 
merchant  under  the  laws  of  the  State  in  which  the  sale  was 
to  be  made.  Such  a  requirement  would  be  a  restriction  upon 
the  regular  and  legal  execution  of  the  powers  of  the  general 
government,  and  therefore  beyond  the  authority  of  a  State. 
XXXIX,  G.     [See  Tax  §  1.] 

See  post  TRADER  $  3  and  note. 

PUBLIC  PROPERTY— DISPOSITION  OF  $  3. 

LIMITATION. 

See  one  HUNDRED  AND  THIRD  ARTICLE. 
RETIREMENT   $  2. 


LOSS  OF  FILES. 

1.  Loss  of,  or  reduction  in,  files  or  steps,  {i.  e.  relative  rank,) 
in  the  list  of  the  officers  of  his  grade,  is  a  recognized  legal 
punishment  by  sentence  of  court-martial,  in  a  case  of  a  com- 
missioned officer.  Like  disqualification,  it  belongs  to  the 
class  of  continuing  punishments.^     XXI,  382. 

2.  Where  a  court  martial  convened  by  a  department  com- 
mander for  the  trial  of  an  officer,  sentences  the  accused,  upon 
conviction,  to  the  punishment  of  a  loss  of  files  or  steps  in  the 
list  of  officers  of  his  rank,  the  approval  of  the  commander  is 
sufficient  to  give  full  effect  to  the  sentence,  and  no  action  by 
superior  authority  can  add  anything  to  its  effect  or  conclusive- 
ness. The  code  does  not,  as  in  the  case  of  a  sentence  of  dis- 
missal, render  a  confirmation  by  the  President  essential  to 
the  execution  of  such  a  i)unishment,  and  the  fact  that  the 
same  involves  a  change  in  the  Army  Eegister  does  not  make 


See  XII  Opins.  of  Attys.  Gen.  547 


312  LOSS   OF   FILES. 

requisite  or  proi^er  a  revision  of  the  case  at  the  War  Depart- 
ment. All  that  is  called  for,  upon  the  approval  of  such  a 
sentence  by  the  commander,  is  simply  to  notify  the  Secretary 
of  War  thereof  by  forwarding  a  copj'  of  the  General  Order 
promulgating  such  approval.  The  proceedings,  (or  their  sub- 
stance,) as  affecting  officers  other  than  the  accused,  may 
then  well  be  republished  in  General  Orders  from  the  Adju- 
tant General's  Office.  XXXYI,  134  j  XXXVII,  83-  XLIII, 
286. 

3.  The  effect  of  this  punishment  is  to  deprive  the  officer  of 
such  relative  right  of  promotion,  as  well  as  right  of  command, 
and  of  precedence  on  courts  or  boards  and  in  selecting  quar- 
ters, &c.,  as  he  would  have  had,  had  he  remained  at  his  original 
number.  Such  effect  continues  till  the  sentence  is  remitted. 
XXII,  05.  But  this  punishment  can  not  per  se  affect  the 
officer's  right  to  pay.     [See  Forfeiture,  II  §  2. J 

4.  This  x:>unishment  has  sometimes  been  remarked  u^oon  as 
an  objectionable  one,^  apparently  mainly  on  account  of  the 
inequality  of  its  effect  upon  other  officers  of  the  grade  of  the 
officer  sentenced.  Thus,  where  an  officer  is  reduced  a  certain 
number  of  files,  those  below  whom  he  is  placed  are  advanced 
while  those  below  himself  gain  nothing.  Where  he  is  reduced 
to  the  foot  of  the  list,  this  objection  does  not  apply :  this  form 
of  the  i^unishment,  however,  where  the  list  is  a  long  one,  is 
extreme  and  severe ;  more  severe,  often,  than  suspension  for 
a  fixed  term.    XXXV,  238. 

See  pardon  ^  G. 

RETIREMENT  ^  11. 

SENTENCE  AND  PUNISHMENT  $  6. 

SUSPENSION  $  4. 

^See  G.  0.  M.  O.  25,  War  Dept.  1873  5  do.  2,  Dept.  of  Da- 
kota, 1873 


&C. — ^MANSLAUGHTER.      313 


M. 


MAKING  GOOD  TIME  LOST  BY  DESERTIOBT. 

See  forty  EIGHTH  ARTICLE  $  1—5. 
ARREST,  II  $  1. 

MANSLAUGHTER. 

1.  That  this  crime,  when  its  commission  by  an  officer  or 
soldier  affects  directly  the  discipline  of  the  service,  (as  where 
the  person  killed  is  another  officer  or  soldier,  and  the  killing 
occurs  at  a  military  post  or  while  the  parties  are  on  active 
service,)  may  be  taken  cognizance  of  by  a  court  martial,  in 
time  of  peace,  under  Art.  62,  as  "conduct  to  the  prejudice  of 
good  order  and  military  discipline" — see  Sixty  Second 
Article  §1,2.  In  time  of  tear  it  is  made  so  cognizable — 
when  committed  by  an  officer  or  soldier  under  any  circum- 
stances— by  Art.  58. 

2.  A  party  of  soldiers  left  their  camp  at  night  in  time  of  war 
without  leave  and  contrary  to  positive  orders,  and  proceeded 
to  a  neighboring  town,  where  they  created  a  disturbance. 
Their  commanding  officer  followed  them,  found  them  at  an 
ale-house,  and  was  about  to  arrest  them  when  they  broke 
from  him,  and,  though  knowing  who  he  was,  disregarded  his 
order  to  halt  and  continued  to  run.  He  repeated  his  order, 
and  not  being  obeyed,  and  having  no  other  means  of  detain- 
ing them,  fired  upon  them  whUe  fleeing,  with  his  pistol,  and 
shot  and  killed  one  of  them.  Having  been  brought  to  trial 
by  court  martial  under  a  charge  of  murder,  he  was  convicted 
of  manslaughter,  and  sentenced  to  dismissal,  forfeiture  of 
pay,  fine  and  imprisonment.  Held^  in  view  of  all  the  circum- 
stances of  the  case,  that  the  finding  and  sentence  would  proi^- 
erly  be  disapproved.^    XI,  592. 

^  Disapproved  accordingly  in  Gr.  C.  M.  O.  177,  War  Depart- 
ment, 1805.  Compare  the  case  of  a  killing  by  a  deputy  U. 
S.  Marshal  under  similar  circumstances,  referred  to  by  the 
Attorney  General,  in  XIY  Opinions,  71. 


314  MANSLAUGHTER. 

3.  Wliere,  in  time  of  jpeace^  a  soldier  wliile  rmming  toward 
liis  quarters  from  two  officers  of  the  command,  who  were  at- 
temx)ting  to  arrest  him  for  disorderly  conduct  at  night,  was, 
by  the  order  of  the  superior  officer,  fired  at  by  the  inferior 
and  mortally  wounded ;  and  it  was  doubtful  upon  the  evidence 
whether  a  sufficient  effort  had  been  made  to  halt  the  soldier 
before  firing,  while  at  the  same  time  it  appeared  quite  prob- 
able that  he  might  subsequently  have  been  identified  at  the 
post  and  duly  i)unished, — lieJd  that,  whatever  may  have  been 
the  offence,  if  any,  of  the  junior  ofiicer,  the  sui)erior,  who 
directed  the  firing,  might,  upon  the  death  of  the  soldier  from 
his  wound,  i^roperly  be  brought  to  trial  on  a  charge  of  ''man- 
slaughter to  the  prejudice  of  good  order  and  military  disci- 
pline."   XXY,  592. 

4.  Where  a  soldier,  confined  with  other  prisoners  in  a  guard 
house,  in  time  of  peace,  was  under  the  influence  of  liquor  and 
noisy,  and  continued  to  be  noisy  and  disorderly  though  repeat- 
edly ordered  by  the  officer  of  the  day  to  keep  quiet,  and  was 
finally  struck  or  thrust  in  the  breast  by  the  latter  with  his 
sword  and  mortally  wounded  so  that  he  presently  died;  and 
It  did  not  appear  that  there  was  any  danger  of  mutiny  or 
serious  disturbance  on  the  part  of  the  other  prisoners  i)resent 
at  the  time, — lield  that  the  evidence  established  no  sufficient 
justification  for  a  resort  by  the  officer  to  such  an  extreme  pro- 
ceeding, and  that  his  conviction  by  court  martial  of  "  man- 
slaughter to  the  prejudice  of  good  order  and  military  discip- 
line," and  sentence  of  dismissal,  were  warranted  and  proper. 
An  officer  has  no  right  to  take  the  life  of  a  soldier,  nor  to 
commit  a  battery  upon  him  with  a  dangerous  weapon,  except 
in  a  most  aggravated  case :  as  in  a  case  of  riot,  rescue  or 
mutiny,  violent  resistance  to  superior  authority,  escape,  or 
refusal  to  obey  a  lawful  order  requiring  instant  obedience — 
when  no  other  but  such  extreme  means  will  restrain  or 
compel  compliance.^  And  an  act  of  killing  of  a  soldier,  which 
in  time  of  war  might  be  justifiable  homicide,  might  be  man- 
slaughter, or  even  murder,  (see  MukdiiIK  §  1,)  in  time  of  i^eace. 
XXXVIII,  579. 

^  See  remarks  of  Secretary  of  War  in  G.  0.  M.  0. 47,  Hdqrs. 
of  Army,  1877;  and  compare  United  States  v,  Carr,  1  Woods, 
484;  also  Orders  cited  in  note  on  page  4513. 


MAEEIAGE — 3IARTIAL  LAW.  315 


MARRIAGE. 


1.  In  the  absence  of  express  authority  given  by  a  statute  of 
the  State  or  Territory,  an  officer  of  the  army  cannot  be  em- 
powered to  solemnize  marriage,  whether  the  male  party  be  a 
soldier  or  a  civilian.     XXIX,  074. 

2.  A  military  commander,  authorized  to  grant  or  refuse 
passes  or  furloughs  to  his  command,  may  of  course  refuse  per- 
mission to  leave  the  post  to  a  soldier  whose  purpose  is  to 
become  married.  A  commander  may  also,  if  the  interests 
of  discipline  require  it,  exclude  the  wives  of  soldiers,  (who  are 
not  laundresses,)  from  a  post  under  his  command  at  which 
their  husbands  are  serving.  But  while  the  Army  Eegaila- 
tions,  (par.  930,)  forbid  the  enlisting,  (in  time  of  peace,  with- 
out special  authority',)  of  married  men,  there  is  no  statute  or 
regulation  forbidding  the  contracting  of  marriage  by  soldiers, 
any  more  than  by  officers,  while  in  the  service.  So  held  that, 
under  existing  law,  a  military  commander  could  have  no  au- 
thority to  prohibit  soldiers,  while  under  his  command,  from 
marrying  ;  and  that  the  contracting  of  marriage  by  a  soldier, 
(although  his  commander  had  forbidden  him,  or  refused  him 
l)ermission,  to  marry,)  could  not  properly  be  held  to  consti- 
tute a  military  offence.  AYhere  indeed  there  is  involved  in 
the  conduct  of  the  soldier  at  the  time  any  military  neglect  of 
duty  or  disorder,  he  may,  for  this  indeed,  be  brought  to  trial 
but  not  for  the  marrying  as  such.  And  remarlxed^  that  if  the 
marrying  by  soldiers  after  enlistment  becomes  so  generally 
practiced  as  to  be  demoralizing  to  the  army  or  otherwise 
prejudicial  to  discipline,  the  evil  can  effectually  be  repressed 
only  through  new  legislation  by  Congress.  XXXVIII,  47, 
407 ;  XLIII,  109. 

See  enlistment,  $  2,  and  note. 

MARTIAL  LAW. 

1.  Martial  law  is  a  modified  degxee  of  the  law  of  war,  (see 
Law  of  Wae,)  or  a  law  assimilated  to  the  latter,  called  into 
exercise  temporarily  and  for  a  specific  piu'pose,  at  a  time  of 
war  or  public  emergency,  and  generally  in  a  place  or  region 
not  constituting  enemy's  country,  or  under  permanent  military 


316  MARTIAL  LAW. 

govermnent.^  Whether  proclaimed  by  the  President  or  de- 
clared by  a  competent  military  commander,  martial  law  over- 
rides and  supersedes,  for  the  time  being,  all  civil  law  and 
authority,  except  in  so  far  as  the  same  may  be  left  operative 
by  the  terms  of  the  announcement,^  or  the  action  or  acquies- 
cence of  the  dominant  power.  While  the  status  of  martial  law 
continues,  the  military  power,  instead  of  being  subordinate,  is 
superior  to  the  civil  power,  and  the  natural  and  normal  con- 
dition of  things  is  thus  reversed.  But  while  martial  law  will 
warrant  a  resort  by  the  commander,  at  his  will,  to  summary 
and  arbitrary  measures,  by  which  the  liberty  of  the  citizen  may 
be  restrained,  his  action  coerced,  and  his  rights  suspended,  it 
cannot  be  availed  of  by  subordinates  to  justify  acts  of  unne- 
cessary violence,  i)ersonal  persecution,  or  wanton  wrong.^ 
XII,  105  5  XIX,  41. 

2.  Where  a  city  or  district  has  been  put  under  martial  law 
by  the  commanding  general,  he  becomes  its  supreme  governor, 
and,  in  governing,  is  ordinarily  to  be  presumed  to  be  em- 
powered to  exercise  the  same  authority  which  the  President 
might  have  exercised  had  he  proclaimed  martial  law  therein.* 
X,  G69. 

3.  In  view  of  the  President's  proclamation  of  July  5,  1864, 
suspending  the  writ  of  habeas  corpus,  and  establishing  martial 

^  Xote  the  distinction  between  military  government  i^roper 
and  martial  law  as  illustrated  in  Milligan's  Case,  4  Wallace, 
142. 

'^  Luther  v.  Borden,  7  Howard,  13-14 ;  United  States  v, 
Dickelman,  2  Otto,  526;  In  re  Egan,  5  Blatch.  319,  321; 
Griffin  v.  Wilcox,  21  Ind.  376 ;  Johnson  v.  Jones,  44  Ills.  153 ; 
In  re  Kemp,  16  Wise.  359;  Clode,  (Military  and  Martial  Law,) 
183-191;  Hough,  (Precedents,)  514,  549;  G.  O.  100,  War 
Dept.,  1863,  Sec.  I. 

^  ^'But  the  existence  of  martial  law  does  not  authorize  gen- 
eral military  license,  or  place  the  lives,  liberty,  or  property  of 
the  citizens  of  the  States  under  the  unlimited  control  of  every 
holder  of  a  military  commission."  Despan  v.  Olney,  1  Cur- 
tis, 308.  And  see  Luther  v.  Borden,  7  Howard,  14;  G.  O. 
100,  War  Department,  1863,  Sec.  I,  §  4. 

^  In  Clark  v.  Dick,  1  Dillon,  8,  the  court,  referring  to  the 
placing  of  the  city  of  St.  Louis  under  martial  law  by  the  De- 
partment Commander,  Ma].  Gen.  Ualleck,  (by  G.  O.  34,  Dept. 
of  the  Missouri,  1861,)  observes:  '^Tliat  this  officer  repre- 
sented the  President  who  is  commander-in-chief  of  the  army, 
and  was  vested  with  all  the  authority  as  such  military  com- 
mander that  belonged  to  the  President,  cannot  be  doubted." 


MARTIAL  LAW.  317 

law  in  tlie  State  of  Kentucky,  held^  (December,  1864,)  to  be 
competent  for  the  general  commanding  the  military  district 
of  Kentuck}^,  if  in  his  judgment  the  effective  maintenance  of 
martial  law  and  the  accomplishment  of  the  ends  proposed  b^' 
its  declaration  required  it,  to  restrain,  by  such  means  as  in 
his  discretion  might  be  deemed  needful,  the  prosecution  of 
suits  instituted  against  United  States  officers  for  acts  done 
in  the  line  of  their  duty,  and  having  the  effect,  (indicated  in 
the  proclamation,)  of  impeding  ''military  operations,"  and  of 
embarrassing  ''the  constituted  authorities  of  the  government 
of  the  United  States."    X,  669. 

4.  The  occasion  for  the  exercise  of  martial  law  properly 
ceases  when  the  emergency  has  passed  which  made  it  neces- 
sary or  expedient.^  So, — the  commander  of  the  Middle  Mili- 
tary Department  having,  in  view  of  the  presence  in  the 
department  of  an  army  of  the  enemy,  proclaimed,  by  order 
of  June  30, 1863,  a  state  of  martial  law  in  Baltimore  city  tind 
county  and  the  counties  of  the  western  shore  of  Maryland, 
with  the  assurance  expressed  that  such  status  should  not  ex- 
tend beyond  the  necessities  of  the  occasion, — held^  (June, 
1865,)  that,  as  the  exigency  had  long  ceased  to  exist,  the 
order,  though  never  in  terms  revoked,  should  properly  be 
considered  as  no  longer  operative.     XII,  422. 

5.  The  President's  proclamation  of  Sept.  24, 1862,  subjected 
to  martial  law  and  trial  by  militarj^  courts  throughout  the 
United  States  certain  classes  of  x>eT^ons  named,  and  sus- 
pended the  privilege  of  the  writ  of  habeas  corpus  as  to  all 
persons  imprisoned  under  military  sentence  or  by  miUtary 
authority  "during  the  rebellion."  The  further  executive 
proclamation  of  Sept.  15,  1863,  (issued  pursuant  to  the  Act 
of  March  3,  1863, — see  Habeas  Corpus  §  1,)  suspended  the 
privilege  of  the  writ  throughout  the  United  States  as  to  cer- 
tain classes  of  persons  enumerated.  The  further  proclamation 
of  Dec.  1, 1865,  in  revoking  generally  the  suspension  declared 
by  the  proclamation  of  Sept.  15,  1863,  excepted  from  such 
revocation,  and  left  the  suspension  in  force  in,  certain  States 
and  Territories  specified  and  "i?i  the  District  of  Columbia.''^ 
The  proclamation  of  April  2,  1866,  (which,  in  one  of  its  pre- 
ambles, declared  that  martial  law  and  the  suspension  of  the 

^In  re  Egan,  5  Blatch.  319,  322;  In  the  matter  of  Martin, 
45  Barb.  145  j  Hough,  (Precedents,)  oSo. 


318  jVIEDICAL   cadet — MEDICAL   OFFICER. 

writ  of  habeas  corpus  were  "dangerous  to  i:)ublic  liberty^  in- 
compatible with  the  individual  rights  of  the  citizen,"  &c.,  and 
"ought  not  to  be  sanctioned  or  allowed  except  in  cases  of 
actual  necessity/'  &c.,)  announced  the  rebellion  as  at  an  end 
throughout  the  United  States,  the  State  of  Texas  only  ex- 
cepted. Held,  in  view  of  these  i^roclamations,  that,  so  far  as 
concerned  the  exercise  of  military  authority  and  jurisdiction, 
martial  law  might  be  considered  to  have  existed  in  the  Dis- 
trict of  Columbia,  from  Sept.  24,  1862,  as  to  the  classes  of 
persons  indicated  in  the  i^roclamation  of  that  date,  and /rom 
Sept.  15,  18G3,  as  to  other  classes  of  persons  indicated  in  the 
proclamation  of  that  date — to  Ai)ril  2,  1866,  the  date  of  the 
proclamation  issued  at  the  end  of  the  war.^    XXXY,  177. 

See  MILITAEY  COMMISSION,  II  §  1,  6,  8. 


MEDICAL  CADET. 

See  pay  AND  ALLOWANCES  $  14. 

MEDICAL  OFFICER. 

1.  The  medical  officer  of  a  command  is  responsible,  (within 
reasonable  limits,)  for  the  health  of  the  men  composing  it. 
Where,  in  the  course  of  the  proper  and  regular  performance 
of  his  function,  he  excuses  men  from  duty  on  account  of  sick- 
ness or  disability,  the  commanding  officer  should  almost  as  a 
matter  of  course  accei)t  his  action  as  conclusive  and  final.  If 
he  refuses  to  do  so  and  orders  on  duty  a  soldier  thus  excused, 
he  assumes  the  responsibility  of  any  material  injury  that  may 
thus  result  to  the  individual  or  the  service,  and,  if  injury  re- 
sults in  fact,  is  amenable  to  trial  for  the  military  offence 
involved.    XLIII,  250. 

2.  A  medical  officer  of  a  post  or  station  is  legally  eligible 
for  service  on  courts  martial,  either  as  a  member  or  a  judge 
advocate,  (see  Seventy  Fifth  Article  §  1  -,  Judge  Advo- 
cate §  25)  and  in  small  commands,  surgeons  and  assistant 

^  "It  would  seem  to  be  conceded  that  the  power  to  suspend 
this  writ,"  (the  writ  of  habeas  corpus,)  "and  that  of  proclaim- 
ing martial  law,  include  one  another.  *•  *  *  The  right  to 
exercise  one  power  implies  the  right  to  exercise  the  other." 
9  Am.  Law  Eeg.  507-8.    And  see  ±Ja; parte  Field,  5  Blatch.  82. 


MEMBER   OF   COURT.  319 

surgeons  are  not  unfrequently  detailed  upon  sucli  service.  In 
view,  however,  of  the  fact  that  a  medical  ofQcer  of  a  post,  with 
a  hospital  or  sick  men  under  his  charge,  is  practically  con- 
tinuously ''on  duty,"  (see  Thirty  Eighth  Article  §  6,) 
beside  requiring  a  considerable  time  for  study,  it  is  deemed 
to  be  in  general  i)rejudicial  to  the  interests  of  the  service  to 
detail  such  officers  ui)on  courts  martial  where  it  can  well  be 
avoided.     XXII,  530;  XXIII,  522. 

3.  Par.  1309,  Army  Eegulations,  authorizes  the  employ- 
ment, for  officers  or  soldiers,  of  the  services  of  a  private 
physician,  at  the  expense  of  the  United  States,  "when  the 
attendance  of  a  medical  officer  cannot  be  had."  Where  the 
medical  officer  of  a  post  declined  to  attempt  a  difficult  opera- 
tion required  to  be  performed  upon  an  officer,  and  recom- 
mended that  an  expert  be  employed,  and  a  private  i^hysician 
was  so  employed  accordingly,  advised  that  the  case  was  sub- 
stantially within  the  provision  of  the  Eegulations,  and  that 
the  reasonable  account  of  such  x)hysician  would  properly  be 
paid  ''by  the  medical  bureau."    XXIX,  23. 

See  sixty  FIRST  ARTICLE  ^  5. 
SIXTY  SECOND  ARTICLE  ^  6. 
ACTING  ASSISTANT  OR  CONTRACT  SURGEON. 
ASSISTANT  SURGEON. 


MEMBER  OF  COURT. 

1.  Officers  detailed  and  serving  as  members  of  a  general 
court  martial  are  not  in  general  properly  ordered  to  perform 
other  duties  while  the  court  remains  in  session  or  not  ad- 
journed 5  and  they  are  not  to  be  considered  as  any  more  sub- 
ject to  such  orders  now  that  they  are  no  longer  allowed  a 
special  compensation  for  their  services  than  they  were  for- 
merly.^ In  an  emergency  indeed  arising  out  of  a  state  of  war, 
or  other  public  exigency,  additional  service  may  be  imposed 
upon  such  officers:  in  a  case  of  this  kind,  however,  their  serv- 
ice on  the  court  would,  preferably,  be  temporarily  suspended. 
Members  of  inferior  courts  martial  are  not  unfrequently  re- 
quired to  perform  additional  duty  because  of  the  limited  num- 

^  The  extra  allowance,  made  payable  to  members  and  judge 
advocates  of  courts-martial  and  courts  of  inquiry,  by  §§  1137 
and  1138,  Army  Eegulations,  was  discontinued  bv  the  Act  of 
July  15,  1870,  s.  21.     See  XIII  Opins.  of  Attys.  Gen.  526. 


320  MEMBER   OF   COURT. 

ber  of  officers  at  the  post.  Par.  901  of  the  Army  Eegulations, 
makiDg  liable  to  other  duty  the  members  of  a  court  martial 
when  the  court  has  adjourned  for  so  long  an  interval  as  three 
days,  applies  only  to  such  members  as  are  a  part  of  the  com- 
mand of  the  post,  &c.,  at  which  the  court  has  been  assembled. 
This  paragraph  is  not  mandatory  but  declaratory  merely,  and 
the  liability  created  may  be  enforced  or  not  by  the  commander 
according  as  the  interests  of  the  service  may  require.  Of 
course  officers  not  connected  with  the  post,  &c.,  command  can 
be  put  on  other  duty  only  by  the  order  of  the  convening  au- 
thority, or  his  successor  or  superior.  VI,  53;  XXVI,  605; 
XXvill,  278;  XXXV,  337. 

2.  A  member  of  a  court  martial,  though,  strictly,  answer- 
able only  to  the  convening  authority  for  a  neglect  to  be  pres- 
ent at  a  session  of  the  court,  will  properly,  when  i)revented 
from  attending,  communicate  the  cause  of  his  absence  to  the 
president  or  judge  advocate,  so  that  the  same  may  be  entered 
in  the  proceedings.  Where  a  member,  on  reappearing  after 
an  absence  from  a  session,  fails  to  offer  any  explanation  of 
such  absence,  it  will  be  proper  for  the  president  of  the  court 
to  ask  of  him  such  statement  as  to  the  cause  of  his  absence 
as  he  may  think  proper  to  make.  XXX,  315.  It  need 
scarcely  be  added  that  the  absence  of  a  member  does  not 
affect  the  legality  of  the  proceedings,  provided  a  quorum  of 
members  remain.^     [See  Seventy  Fifth  Article  §  3.] 

3.  It  does  not  invalidate  the  proceedings  of  a  court  martial 
that  a  member  who  has  been  present  during  a  portion  of  the 
trial,  and  has  then  absented  himself  during  a  portion,  has  sub- 
sequently resumed  his  seat  on  the  court  and  taken  i)art  in  the 
trial  and  judgment.  Xor  is  the  legal  validity  of  the  proceed- 
ings affected  by  the  adding  of  a  neiv  member  to  the  court 
pending  the  trial.  In  either  case,  however,  the  testimony 
which  has  been  introduced  and  the  material  x>i'oceedings 
which  have  been  had  while  the  new  or  absent  member  was 
not  present  should  be  communicated  to  him  before  he  enters, 
or  reenters,  upon  his  duties  as  a  member.  Such  was  the 
ruling  of  the  Secretary  of  War  on  Genl.  Hull's  trial,^  and  this 

^  See  VII  Opins.  of  Attys.  Gen.  101.  ' 

^  See  the  reply  dated  March  7,  1814,  of  the  Secretary  of 

War,  Hon.  John  Armstrong,  to  the  communication  of  the 

"  acting  special  judge  advocate,"  Hon.  Martin  Van  Buren, 

submitting  questions  for  the  court.     (Forbes'  Trial  of  Hull, 


MEMBER   OF   COURT.  321 

l^recedeut  was  followed  in  repeated,  tliougb.  not  frequent, 
cases  during  the  late  war.  For  a  member,  however,  who  has 
been  absent  during  a  substantial  part  of  a  trial  to  return 
and  take  part  in  a  conviction  and  sentence,  is  certainly  a 
marked  irregularity,  and  one  which  may  well  induce  a  disap- 
proval of  the  findings  and  sentence  in  a  case  where  there  is 
reason  to  believe  that  the  accused  may  have  sufi'ered  mate- 
rial disadvantage  from  the  member's  action.  Yll,  128,  411, 
467  J  YIII,  602 ;  XXYII,  584.  It  is  of  course  to  be  under- 
stood that  a  member  cannot  legally  resume  his  seat  where, 
by  his  absenting  himself,  the  court  has  been  reduced  below 
five  members.  XXV,  640.  [See  Seventy  Fiftu  Article 
§  3.]  To  add  a  new  member  to  a  military  court  after  any  ma- 
terial part  of  the  trial  has  been  gone  through  with,  must 
always  be  a  most  undesirable  measure,  and  one  not  to  be 
resorted  to  except  in  an  exceptional  case  and  to  prevent  a 
failure  of  justice.  Adding  a  member  after  all  the  testimony 
has  been  introduced,  and  nothing  remains  except  the  finding 
and  sentence,  is  believed  to  be  without  precedent.  XLI,  525. 
4.  Where,  in  the  course  of  a  trial  by  court-martial,  a  mem- 
ber of  the  court  is  served  with  an  executive  order  in  due  form 
dismissing  or  discharging  him  from  the  military  service,  or 
an  official  communication  notifying  him  of  the  acceptance  of 
his  resignation,  he  becomes  thereupon  sei)arated  from  the 
army  and  can  no  longer  act  upon  the  court :  he  should  therefore 
at  once  withdraw  therefrom,  and  the  fact  of  his  withdrawal, 
explained  by  a  copy  of  the  order,  be  entered  ujion  the  record. 
And  the  proceeding  should  be  similar  where  a  member  is 
served  with  an  order  of  the  President  placing  him  upon  the 
retired  list ;  retired  officers  not  being  legally'  competent  to 
sit  upon  courts-martial.  XI,  203.  But  the  receipt  by  a  mem- 
ber, during  the  proceedings  of  the  court,  of  an  appointment 
to  a  higher  rank,  or  of  other  official  notice  of  his  promotion, 
can  affect  in  no  manner  his  competenc;^  to  act  upon  the  court. 

Appendix,  pp.  28-20.)  It  was  indeed  held  by  Attorney  Gen- 
eral Berrien,  (II  Opins.  414,)  that  a  member  of  a  court  mar- 
tial who  has  absented  himself  during  the  taldug  of  testimony 
is  disqualified  to  take  i^art  in  the  sentence.  Attorney  Gen- 
eral Cushing,  however,  held  in  a  later  opinion,  (YII  Opins. 
08,)  that  whether  the  absent  meiiiber  should  resume  his  seat 
and  act  upon  his  return  ''  must  depend  upon  his  own  views 
of  projniety.'' 
21  D 


322  MEMBER  OF   COURT. 

The  fact  of  the  promotion  should  indeed  be  noted  in  the 
record  and  the  officer  be  thereafter  designated  by  his  new 
rank.  YI,  558.  Where  the  term  of  service  of  a  member  as 
an  officer  of  volunteers  expired  pending  a  trial  by  the  court, 
held  that  the  member  was  not  thereupon  disqualified,  but 
could  legally  continue  to  act  upon  the  court  till  actually  dis- 
charged or  mustered  out  of  the  service.^     XV,  111. 

5.  While  it  is  in  general  undesirable  that  a  member  of  a 
military  court  should  testify  as  a  witness  at  a  trial  had  be- 
fore such  court,  unless  perhaps  his  testimony  relates  to  char- 
acter merely,  yet  the  fact  that  he  is  called  upon  to  testify, 
while  it  does  not  affect  the  validity  of  the  proceedings,^  does 
not  oi^erate  to  debar  the  member  himself  from  the  exercise  of 
any  of  the  duties  or  rights  incident  to  his  membership.  He 
remains  entitled  to  take  part  in  all  deliberations,  including 
indeed  those  had  in  regard  to  the  admissibility  of  questions 
put  to  himself  or  of  his  answers  to  questions :  he  will  nat- 
urally, however,  in  general  refrain  from  expressing  himself 
upon  points  arising  in  connection  with  his  own  evidence. 
XXYI,  216. 

See  seventy  FIFTH  ARTICLE  §  4,  5,  8. 
SEVENTY  NINTH  ARTICLE  §  1. 
EIGHTY  FOURTH  ARTICLE  §  1-4. 
EIGHTY  SIXTH  ARTICLE  §  1,  note. 
EIGHTY  EIGHTH  ARTICLE. 

ONE  HUNDRED  AND  NINETEENTH  ARTICLE  $  2,  and  note. 
ARREST,  I  §  6. 
COURT  MARTIAL,  I  $  15,  16. 
JUDGE  ADVOCATE  $  5. 

PRESIDING  OFFICER  OF  THE  COURT  $  1-5. 
PROTEST. 

RECOMMENDATION. 
REVISION  $  6,  7. 

SENTENCE  AND  PUNISHMENT  $  1,  2. 
WITNESS  $  5. 


'  In  a  case  in  G.  C.  M.  O.  104,  Dept.  of  Kentucky,  1865,  the 
proceedings  were,  properly,,  disapproved  because  a  member 
had  remained  and  acted  upon  the  trial  after  receiving  official 
notice  of  his  muster-out. 

2  Compare  Peoi)le  v.  Dohring,  59  X.  York,  374. 


MILEAOE.  323 


MILEAGE. 


(TJnder  sec.  1273,  Eev.  Sts.  as  amended  by  the  Act  of  July  24, 
1876,  c.  226,  s.  2.) 

1.  An  officer  on  leave  of  absence,  whose  leave,  before  being 
completed,  is  terminated  by  an  order  of  competent  authority 
requiring-  him  to  return  at  once  to  his  station,  is  entitled  to 
mileage  for  the  return  journey,  upon  duly  com^dying  with 
such  order.     XXXYI,  420. 

2.  Par.  1112  of  the  Army  Eegulations,  (in  regard  to  the 
return  of  officers  on  leave  of  absence,)  has  been  superseded  by 
the  subsequent  legislation  contained  in  sec.  1273,  Rev.  Sts., 
(as  amended  by  the  Act  of  July  24,  1876,)  and  is  no  longer 
operative.     XXXYIII,  388. 

3.  By  the  Act  of  July  24,  1876,  s.  2,  "any  officer-'  who 
"  travels  under  orders  "  is  entitled  to  a  mileage  allowance  of 
"  eight  cents  a  mile  for  each  mile  actually  travelled  "  by  him 
under  his  order,  i^rovided  he  "  is  not  furnished  transporta- 
tion "  in  any  of  the  modes  specified  in  the  Act.  So,  in  a  case 
of  an  officer  who,  while  on  leave  of  absence,  was  by  an  order 
irom  the  Headquarters  of  the  Army,  placed  on  special  duty  in 
a  bureau  of  the  AYar  Department,  and,  Imving  been  retained 
on  such  duty  for  a  period  extending  by  two  weeks  beyond 
the  term  of  his  leave,  was,  by  a  second  order  from  the  same 
source,  formally  relieved  from  such  duty  and  ordered  to  re- 
turn to  his  station,  and  thereui^on  duly  returned  accord- 
ingly,— held  that,  in  so  returning,  he  was  travelling  "  under 
orders  "  in  the  sense  of  the  Act,  and  was  therefore  entitled  to 
mileage  for  the  journey  from  AYashington  to  such  station.^ 
XXXIX,  359. 

4.  Where  an  officer  was  required  by  a  comx^etent  order  to 
travel  from  his  proj^er  station  to  another  post,  to  attend  his 
own  trial  by  court  martial,  and  transi)ortation  was  not  fur- 
nished him j-^held  that  he  was  entitled  to  mileage  for  such 
journey,  the  purpose  for  which  the  same  was  ordered  to  be 
made  not  being  material.     XXXIY,  339. 

5.  An  officer  was  duly  ordered  to  proceed,  in  command  of 
a  guard  for  insane  soldiers,  from  his  station  in  California  to 

^Held  otherwise,  however,  bv  the  Court  of  Claims,  in  Barr 
D.  United  States,  14  Ct.  CI.  272. 


324         MILITARY  ACADEMY — MILITARY   COMMISSION. 

Washington,  the  order  directing  in  effect  that  transportation 
be  furnished  both  ways  for  him  and  his  command.  At  Wash- 
ington, while  the  guard — its  service  being  performed — re- 
turned at  once  according  to  the  original  order,  the  officer  was 
specially  authorized,  by  an  order  issued  from  the  Headquarters 
of  the  Army,  to  delay  his  return  for  thirty  days.  Eeturning 
at  the  end  of  this  time  to  California,  an  order  was  issued  by 
the  department  commander  in  which  the  modification  of  his 
duty  and  action  under  the  second  order  was  recognized,  and 
he  was  declared  to  be  entitled  to  mileage  for  the  return  jour- 
ney and  was  thereuijon  i^aid  the  same  accordingly.  Held 
that  there  was  no  legal  objection  to  the  last  order,  and  that 
the  amount  of  the  mileage  allowed  thereby  could  not  prop- 
erly or  fairly  be  stopped  at  a  subsequent  date  against  the 
officer's  pay.    XLIII,  91. 

See  leave  OF  ABSENCE  $  3. 

MILITARY  ACADEMY. 

See  cadet. 

SUSPENSION  $  12. 

PROFESSOR  OF  THE  MILITARY  ACADEMY. 


MILITARY— AMEIJABILITY  OF  TO  THE  CIVIL  JURISDIC- 

TIOH. 

See  fifty  NINTH  ARTICLE. 

CESSION  OF  JURISDICTION  $  5. 

CIVIL  PROCESS  ^  4,  5. 

COURT  MARTIAL,  II  §  12,  and  note. 

MILITARY     COMMISSION,      I— ORIGIN,      CONSTITUTION, 
PROCEDURE,  &c. 

1.  By  a  practice  dating  from  1847,^  and  renewed  and  Jfirmly 

^  See  Maj.  Gen.  Scott's  G.  0. 20,  Hdqrs.  of  Army,  Tampico, 
Feb.  19,  1847,  republished,  "with  important  additions,"  in 
G.  O.  190  and  287  of  the  same  year.  And  see  the  following 
Orders  convening  military  commissions,  issued  by  Gen.  Scott: 
G.O.  Hdqrs.  of  Army,  1847,  Nos.  81,  83,  121,  124,  147,  171, 
194,  215,  239,  267,  270,  273,  292,  334,  335,  380,  392;  also  No. 
•9  of  1848.     Also  the  following  issued  by  Gen.  Taylor:  G.  O. 


IVnLITAKY   CO^IMISSION.  325 

established  during  the  late  war/  Military  Commissions  have 
become  adopted  as  authorized  tribunals  in  this  country  in 
time  of  war.  Thej^  are  simply  criminal  war-courts,  resorted 
to  for  the  reason  that  the  jurisdiction  of  Courts  Martial, 
creatures  as  they  are  of  statute,  is  restricted  by  law,  and 
cannot  be  extended  to  include  certain  classes  of  offences,  (see 
Military  Co^imission,  II,  §  1,)  which  in  war  would  go  un- 
punished in  the  absence  of  a  provisional  forum  for  the  trial 
of  the  offenders.  Their  authority  is  derived  from  the  Law  of 
War,^  though  in  some  cases  their  i)owers  have  been  added  to 
by  statute.^    Their  competency  has  been  recognized  not  onlj- 

60,  lOG,  112,  121,  of  1847 ;  and  the  following  issued  by  Gen. 
Wool :  G.  O.  140,  179,  216,  4G3,  476,  514,  of  1847. 

In  this  connection,  note  also  the  institution  by  Gen.  Scott 
of  ''Councils  of  War" — summary  courts  for  the  xmnishment 
of  certain  violations  of  the  laws  of  war — as  exhibited  in  G.  O., 
Hdqrs,  of  Army,  Nos.  181,  184  and  372,  of  1847,  and  Xos.  35 
and  41,  of  1848. 

^  The  first  military  commission  of  the  war  is  believed  to  have 
been  that  convened  by  Maj.  Gen.  Fremont,  by  G.  0. 118,  West- 
ern Department,  St.  Louis,  Sept.  2,  1861. 

2  See  G.  O.  100,  War  Dept.,  1863,  Sec.  I,  §  13 ;  do.  1,  Dept. 
of  the  Missouri,  1862 ;  do.  20,  Hdqrs.  of  Army,  1847  ;  United 
States  V.  Eeiter,  13  Am.  Law  Eeg.  534;  State  v.  Stillman,  7 
Cold.  341;  Hefferman  i\  Porter,  6  do.  697.  And  see  also 
Ol)inions  of  Attys.  Gen.  cited  in  note  4  on  page  326. 

^  See  Act  of  March  3,  1863,  c.  75,  s.  30,  declaring  that,  in 
time  of  war,  «&c.,  murder,  manslaughter,  robbery,  larceny, 
and  other  specified  crimes,  when  coumiitted  by  i)ersons  in  the 
military  service,  shall  be  punishable  by  sentence  of  court 
martial  "or  military  commission,"  &c. — an  enactment  re- 
peated, as  to  courts  martial,  in  the  58th  Article  of  War :  Also, 
s.  38  of  the  same  Act,  (repeated  in  Sec.  1343,  Kev.  Sts.,)  mak- 
ing spies  triable  by  general  court  martial  "  or  military  com- 
mission" and  punishable  with  death.  See,  further,  Act  of 
July  2,  1864,  c.  215,  s.  l,by  which  commanders  of  departments 
and  commanding  generals  in  the  held  were  authorized  to 
carry  into  execution  sentences  imposed  b^'  military  commis- 
sion upon  guerrillas :  Also  Act  of  July  4,  1864,  c.  253,  s.  6 
and  r,  (not  now  in  force,)  making  inspectors  in  the  quarter- 
master department  triable  and  punishable  by  sentence  ot  court- 
martial  or  "  military  commission,"  for  fraud  or  neglect  of  duty, 
as  also  other  emj^loyees  and  oflQcers  of  that  department  for 
accepting  bribes  from  contractors,  &c. :  Also  the  Eecoustruc- 
tion  Act  of  March  2,  1867,  c.  153,  s.  3,  by  which  commanders 
of  Military  Districts  were  authorized  to  convene  military  com- 
missions for  the  trial  of  certain  offenders.  [See  Militaey 
Commission,  II  §  10.] 


3>2G  ^  MILITARY   COIMMISSION. 

in  Acts  of  Congress  1  but  in  executive  proclamations,"  in 
rulings  of  the  courts,'  and  in  opinions  of  the  Attorneys  Gen- 
eral.^ During  the  rebellion  they  were  employed  in  several 
thousand  cases  -,  more  recently  they  were  resorted  to  under 
the  ''Eeconstruction"  Act  of  1867;'  and  still  later  one  of 
these  courts  has  been  convened  for  the  trial  of  Indians  as 
oifenders  against  the  laws  of  war.*^ 

2.  Except  in  so  far  as  to  invest  military  commissions  in  a 
few  cases  with  a  special  jurisdiction  and  power  of  punish- 
ment,^ the  statute  law  has  failed  to  define  their  authority, 
nor  has  it  made  provision  in  regard  to  their  constitution, 
comi^osition  or  procedure.  In  consequence,  the  rules  which 
api)ly  in  these  particulars  to  general  courts -martial  have 
almost  uniformly  been  applied  to  military  commissions.  They 
have  ordinarily  been  convened  by  the  same  officers  as  are 
authorized  by  the  Articles  of  War  to  convene  such  courts : 
the  accusations  investigated  by  them  have  been  presented  in 
charges  and  specifications  similar  in  form  to  those  entertained 
by  general  courts  :  their  proceedings  have  been  similar  and 
similarly  recorded ;  and  their  sentences  have  been  similarly 
Ijassed  upon  and  executed.     I,  453,  465 ;  II,  27,  83,  563  ;  III, 

^  See  the  Acts  cited  in  last  note,  together  with  Sees.  11 99, 
1343  and  1344,  Eev.  Sts.,  as  also  the  recent  ai^propriation 
Acts  of  July  24,  1876,  Nov.  21,  1877,  June  18,  1878,  June  23, 
1879,  and  May  4,  1880,  in  which,  among  other  items  for  the 
Pay  Department,  appropriation  is  made  '  for  compensation 
for  citizen  clerks  and  witnesses  attending  upon  courts  martial 
and  military  commissions.'' 

-See 'the  proclamations  of  Sept.  24,  1862,  and  April  2, 1866. 

^  Ex  parte  Vallandigham,  1  Wallace,  243  ;  In  the  matter  of 
Martin,  45  Barb.  146;  Ex  parte  Bright,  1  Utah,  145;  State??. 
Stillman,  7  Cold.  341.  In  the  last  case  the  court  say:  ''A 
military  commission  is  a  tribunal  now  (1870)  as  well  known 
and  recognized  in  the  laws  of  the  Uiuted  States  as  a  court 
martial."  It  has  been  "recognized  by  the  executive,  legisla- 
tive and  judicial  departments  of  the  government  of  the  United 
States." 

'  See  y  Opins.  of  Attys.  Gen.  55;  XI  Id.  297 ;  XII  Id.  332; 

XIII  Id.  59 ;  XIV  Id.  249. 

^  See  Military  Commission,  II  §  9. 

•^  The  case  of  the  Modoc  Indians  tried  by  military  commis- 
sion in  July  1873.     (G.  C.  M.  O.  32,  War  Dept.  1873.)     See 

XIV  Opins.  of  Attys.  Gen.  249. 

^  See  statutes  cited  in  note  3  on  p.  325. 


MILITARY   C03OIISSI0N.  327 

428',  Y,  95;  VII,  o^yG,  GGl ;  YIII,  111;  XII,  394;  XXIX,  39. 
Their  composition  lias  also  been  the  same,  except  that  the 
mi7iimiim  of  members  has  been  fixed  by  usage  at  three.  XV, 
149.  They  have  generally  also  been  supplied  with  a  judge 
advocate  as  a  prosecuting  officer.  A  military  commission 
constituted  with  less  than  three  members,  or  which  proceeded 
to  trial  with  less  than  three  members,  or  which  was  not  at- 
tended by  a  judge  advocate,  would  be  contrary  to  precedent. 
IX,  591;  XI,  479;  XIII,  28G;  XV,  204.  In  the  absence, 
however,  of  any  statutory  provision  on  the  subject,  a  com- 
mission which  departed  from  the  general  usage  in  any  of 
these  respects  would  not  necessarily  be  held  to  be  an  illegal 
tribunal. 

3.  In  view  of  the  analogy  prevailing  and  sanctioned  be- 
tween these  bodies  and  courts-martial,  it  has  been  held  by  the 
Judge  Advocate  General  that  military  commissions  would 
properly  be  sworn  like  general  courts-martial,  (XI,  111 ;)  that 
the  right  of  challenging  their  members  should  be  afforded  to 
the  accused  ;  that  two-thirds  of  their  members  should  concur 
in  death  sentences,  (XXIII,  650;)  and  that  the  two-years  lim- 
itation would  properly  be  applied  to  prosecutions  before  them. 
IX,  657.  Xone  of  these  feature,  however,  are  made  essential 
by  statute. 

See  court  ilARTIAL,  I  $  24. 


MILITARY  COMMISSION,  II— JURISDICTION. 

1.  The  jurisdiction  of  the  Military  Commission  is  derived 
primarily  and  mainly  from  the  Law  of  War  :  that  special  au- 
thority has  in  some  cases  been  devolved  upon  it  by  express 
legislation  has  already  been  noticed.  Military  commissions 
are  authorized  by  the  laws  of  war  to  exercise  jurisdiction 
over  two  classes  of  offences,  committed,  whether  by  civilians^ 
or  military  persons,  either  (1)  in  the  enemy's  country  during 
its  occux>ation  by  our  armies  and  while  it  remains  under  mil- 
itary government,  or  (2)  in  a  locality,  not  within  the  enemy's 
country  or  necessarily  within  the  theatre  of  war,  in  which 

^  The  General  Orders  issued  during  the  late  war  contain 
nearl^^  one  hundred  and  fifty  cases  of  women  tried  by  military 
commissions. 


328  MILITARY   COMMISSION. 

martial  law  has  been  establislied  by  competent  autliority.' 
The  two  classes  of  offences  are — I.  Violations  of  the  Laws 
of  War :  II.  Civil  Crimes,  which,  becanse  the  civil  authority 
is  superseded  by  the  military-,  and  the  civil  courts  are  closed 
or  their  functions  suspended,  cannot  be  taken  cognizance  of 
by  the  ordinary  tribunals.  In  other  words,  the  Military  Com- 
mission, besides  exercising  under  the  laws  of  war,  a  jurisdic- 
tion of  offences  peculiar  to  war,  may  act  also  as  a  substitute, 
for  the  time,  for  the  regular  criminal  judicature  of  the  State 
or  district.  II,  242 ;  III,  404  j  YII,  20,  418  j  YIII,  153,  529  ; 
XX,  502. 

2.  A  military  commission,  whether  exercising  a  jurisdiction 
strictly  under  the  laws  of  war,  or  as  a  substitute  in  time  of 
war  for  the  local  criminal  courts,  may  take  cognizance  of 
offences  committed,  during  the  war,  before  the  initiation  of  the 
military  government  or  martial  law,  but  not  then  brought  to 
trial.  XIX,  390.  [But  see  Spy  §  6.]  So  held  that  an  enemy, 
taken  prisoner  of  war,  was  triable  by  a  military  commission 
for  a  violation  of  the  laws  of  war  committed  before  his  cap- 
ture. YIII,  529.  But  when  an  officer  or  soldier  of  the 
enemy's  army  is,  upon  capture,  charged  before  a  military 
commission  with  a  violation  of  the  laws  of  war,  the  j)roof 
should  of  course  be  clear  that  the  act  committed  was  as 
charged,  i.  e.  was  not  a  legitimate  act  of  war. 

3.  During  the  late  war  a  very  great  number  and  variety  of 
offences  against  the  laws  and  usages  of  war, — charged  either, 
generally,  as  "  Yiolation  of  the  laws  of  war,"  or,  specifically, 
by  their  particular  names  or  descriptions, — were  passed  upon 
and  punished  by  military  commissions.  Of  these  some  of  the 
principal,  (committed  mostly  by  civilians,)  were  as  follows  : 
Unauthorized  trading  or  commercial  intercourse  with  the 
enemy — Unauthorized  correspondence  with  the  enemy — 
Blockade  running — Mail  carrying  across  the  lines — Drawing 
a  bill  of  exchange  upon  an  enemy,  or  by  an  enemy  upon  a 
party  in  a  northern  city^ — Dealing  in,  negotiating,  or  utter- 

^  See  Martial  Law  §  1.  And  note,  in  this  connection, 
Chief  Justice  Chase's  description  of  the  jurisdiction  exercised 
under  Military  Government  and  Martial  Law,  as  distin- 
guished from  that  conferred  by  the  Military  Law  x>roper — in 
IJx  parte  Milligan,  4  Wallace,  142. 

'  See  Britton  v.  Butler,  9  Blatch.  457  ;  Williams  v.  Mobile 
Sav.  Bk.,  2  Woods,  501 ;  Woods  v.  Wilder,  43  X.  York,  104^ 
Lacy  V.  fougarman,  12  Heisk.  354. 


MILITARY   C0M3IISSI0N.  329 

iug  confederate  securities  or  inouey ' — Manufacturing  arms, 
&c.,  for  the  enemj- — Furnishing  to  an  enemy  articles  contra- 
band of  war — Dealing  in  such  articles  in  violation  of  military 
orders — Publicly  expressing  hostility  to  the  U.  S.  govern- 
ment or  s^'mpathy  with  the  enemy — Coming  within  the  lines 
of  the  army  from  the  enemy  without  authority — Violating 
a  flag  of  truce — Violation  of  an  oath  of  allegiance,  or  of  an 
amnesty  oath — Violation  of  x)arole  by  a  prisoner  of  war — 
Aiding  iirisoner  of  war  to  escape — Unwarranted  treatment 
of  federal  prisoners  of  war — Burning,  destroying,  or  obstruct- 
ing railroads,  bridges,  steamboats,  «&;c.,  used  in  military  oi)er- 
ations — Cutting  telegraph  wires  between  military  posts — 
Eecruiting  for  the  enemy  within  the  federal  lines — Engaging 
in  "  guerrilla"  or  partisan  warfare — Assisting  federal  soldiers 
to  desert — Resisting  or  obstructing  an  enrolment  or  draft — 
Impeding  enlistments — Violating  orders  in  regard  to  selling 
liquor  to  soldiers  or  other  military  orders  of  police  in  a  dis- 
trict under  military  government — Attempt  without  success 
to  aid  the  enemy  by  transporting  to  him  articles  contraband 
of  war — Consi^iracy  by  two  or  more  to  violate  the  laws  of 
war  by  destroying  life  or  property  in  aid  of  the  enemy.  II, 
144;  ill,  401,  589,  619;  IV,  329;  V,  30,  590;  VI,  20;  VII, 
413 ;  VIII,  529  ;  IX,  149,  204,  225,  481,  524,  535  ;  X,  567  ;  XI, 
473,  513  ;  XIII,  125,  675 ;  XVI,  446  ;  XXI,  101,  280,  &c. 

4.  Of  the  ordinary  crimes  taken  cogfiizance  of  under  similar 
circumstances  by  these  tribunals,  the  most  frequent  were 
homicides,  and,  and  after  these,  robbery,  aggravated  assault 
and  battery,  larceny,  receiving  stolen  property,  rai)e,  arson, 
burglary,  riot,  breach  of  the  peace,  attem^jt  to  bribe  public 
officers,  embezzlement  and  misapi)roi)riation  of  public  money 
or  property,  defrauding  or  attempting  to  defraud  the  United 
States,  &c.  VII,  418;  VIII,  194,  529;  XIV,  40;  XV,  281; 
XVIII,  525;  XIX,  319,  390;  XXI  225;  XXII,  116;  XXVII, 
423,  522 ;  XXIX,  157,  233 ;  XXX,  380,   638,  &c. 

5.  Xot  unfrequently  the  crime,  as  charged  and  found,  was 
a  combination  of  the  two  species  of  offences  above  indicated. 
As  in  the  case  of  the  alleged  killing,  by  shooting  or  unwar- 
rantably harsh  treatment,  of  officers  or  soldiers,  after  they 
had  surrendered,  or  while  they  were  held  in  confinement  as 
prisoners  of  war,  of  which  persons  were  in  several  cases  dur- 

^  See  Horn  v.  Lockhart,  17  Wallace,  580. 


330  MILITARY  COMMISSION. 

ing  the  war  convicted  by  military  commissions  under  the 
charge  of  "  Murder,  in  violation  of  the  laws  of  war."^  VII, 
360;  XYIT,  455;  XIX,  221;  XX,  G50.  A  more  recent  illus- 
tration was  the  principal  offence  of  the  Modoc  Indians,  (tried 
by  military  commission  in  July,  1873,)  which,  as  a  treacherous 
■killing  of  an  enemy  during  a  truce,  was  charged  as  "  Murder 
in  violation  of  the  laws  of  war."  ^ 

6.  From  the  jurisdiction,  however,  of  military  commissions, 
under  the  circumstances  above  indicated,  are  properly  ex- 
cepted such  offences  as  are  within  the  legal  cognizance  of  the 
ordinary  criminal  courts,  when,  upon  the  establishing  of  mili- 
tary giovernment  or  of  the  status  of  martial  law,  such  courts 
have  been,  by  express  designation  or  in  fact,  left  in  full  oper- 
ation and  possession  of  their  usual  powers.  Thus,  during  the 
considerable  period  of  the  war  pending  which  the  District  of 
Columbia  was  practically  placed  under  a  mild  form  of  mar- 
tial law,  (see  Martial  Law  §  5,)  ordinary  criminal  offences 
committed  therein  by  civilians  or  military  persons,  of  which 
there  was  not  exj^ressly  vested  by  statute,  (as  by  the  Act  of 
Mch.  3,  1863,  c.  75,  s.  30,)  a  jurisdiction  in  military  courts 
concurrent  with  that  of  the  civil  tribunals,  were  in  general 
allowed  to  be  taken  cognizance  of  by  the  latter,  the  same 
being  at  no  time  seriously  interrupted  in  the  exercise  of  their 
judicial  functions. 

7.  So,  in  a  State  or  district  where  military  government  or 
martial  law  has  not  prevailed,  or,  having  prevailed  for  a  time, 
has  ceased  to  be  exercised,  and  the  regular  criminal  courts 
are  open  and  in  operation,  a  military  commission,  (in  the 
absence  certainly  of  special  authority  from  Congress,)  cannot 
be  empowered  to  assume  jurisdiction  of  a  public  offence, 
although  the  nation  be  still  involved  in  war.^  IX,  657 ;  XII, 
422;  XIV,  382;  XVI,  298;  XXX,  34.  A  /or/ioH,  where,  at 
the  date  of  the  offence,  there  was,  properly,  no  state  of  war 
in  which  the  nation  was  involved  with  an  enem^'.  Thus  lield., 
(January,  1875,)  that  a  military  commission  could  not  legally 


^  See  G,  C.  M.  O.  607,  War  Dept.  1865;  do.  153,  Id.  1866. 

'-'G.  C.  M.  O.  32,  Wjir  Dept.  1873. 

=^See  the  leading  case  of  Ex  parte  Milligan,  4  AVallace,  1; 
also  Milhgan  v.  Hovev,  3  Bissell,  13;  In  re  Muri)liv,  Wool- 
worth,  143;  Devlin  v.  United  States,  12  Ct.  CI.  271;  XII 
Opins.  of  Attys.  Gen.  128. 


MILITARY   COlMiMISSION.  331 

be  convened  for  the  trial  of  Indians,  for  violations  of  tbe  laws 
of  war,  on  account  of  thefts,  robberies,  and  murders  com- 
mitted by  them  upon  incursions  made  into  the  State  of  Texas, 
"where  said  Indians,  (unlike  the  Modocs — see  §  5  supra^)  were 
mere  raiders,  with  whose  tribe,  as  such,  the  United  States 
was  not  engaged  in  war,  and  whose  crimes,  therefore,  were 
not  commiitQii  flagrante  hello}    XXXVI,  221. 

8.  Where  the  State  was  not  under  martial  law  or  military 
government,  the  fact  that  the  ofi'ence  was  committed  by  a 
I)risoner  of  war  at  a  prison  camp  (within  the  State)  for 
the  confinement  of  prisoners  of  war,  and  guarded  by  fed- 
eral troops,  was  held  insuflicient  to  give  a  military  com- 
mission jurisdiction  of  the  case.  XV,  358.  But  held  that  the 
mere  fact  of  the  appointing  by  the  Executive  of  a  "provis- 
ional governor"  for  an  insurrectionary  State,  in  June,  18G5, 
prior  to  the  date  of  the  proclamation,  (of  April  2, 18G0,)  declar- 
ing the  war  at  an  end  in  that  State,  and  while  the  territorj^ 
of  the  same  still  remained  in  military  occupation,  did  not 
operate  to  oust  military  commissions  of  jurisdiction  of  crim- 
inal oftences  committed  within  the  State.-     XVI,  415. 

9.  It  is  a  further  restriction  upon  the  jurisdiction  of  the 
Military  Commission  that,  except  where  it  may  be  invested 
by  statute  with  a  jurisdiction  concurrent  with  that  of  courts 
martial,  (as  by  sees.  30  and  38  of  the  Act  of  March  3,  18G3,) 
its  authority  cannot  be  extended  to  the  trial  of  oftences  which 
are,  specifically  or  in  general  terms,  made  cognizable  and 
punishable  by  courts-martial,  by  the  articles  of  war  or  other 
statute.  In  repeated  instances  during  the  late  war  the  pro- 
ceedings of  military  commissions,  in  cases  in  which  these 
tribunals  had  improperly  assumed  jurisdiction  of  offences 
legally  triable  by  courts  martial  only,  were  recommended  by 

^  As  to  the  nature  of  the  hostility  which  may  properly  bring 
Indians  "  within  the  description  of  public  enemies,"  compare 
XIII  Opins.  of  Attys.  Gen.  471.  That  a  detached  band  of 
marauding  Indians  was  not  an  "enemy"  in  the  sense  of  the 
Act  of  Mch.  3,  1849,  (Sec.  3483,  Eev.  Sfs.,)  providing  for  the 
making  good  of  danuige  sustained  by  the  capture  or  destruc- 
tion of  certain  property  "by  an  enemy" — was  held  by  the 
Sui)reme  Court  in  Stuart  i\  United  States,  18  Wallace,  84. 

'^  See  Belding  v.  State,  25  Ark.  315.  And  compare  XIII 
Opins.  of  Attys.  Gen.  G5-Gj  Coleman  v.  Tennessee,  7  Otto, 
51G. 


332  MILITARY   C03I1MISSI0N. 

the  Judge  Advocate  General  to  be  disapproved.     1, 384,  4G8, 
482 ;  VII,  440,  486  j  IX,  236 ;  XV,  373 ;  XVI,  73 ;  XIX,  63. 

10.  As  to  the  si)ecial  statutory  jurisdiction  with  which  the 
Military  Commission  has,  in  certain  cases,  been  invested,  the 
Acts  of  Congress  by  which  this  has  been  conferred  and  defined 
have  already  been  cited.  Of  these,  the  provision  of  the  act  of 
March  3,  1863,  by  which  a  jurisdiction,  concurrent  with  that 
of  the  court  martial,  is  given  to  this  tribunal  in  cases  of  spies ^ 
is  the  only  one  now  in  force,  being  embodied  in  Sec.  1343, 
Eev.  Sts. 

Under  the  latest  of  these  Acts,  the  "  Eeconstruction  "  Act 
of  March  3,  1867,  in  sec.  3  of  which  the  commanders  of  the 
military  districts  constituted  thereby  were  emi)owered,  in 
their  discretion,  ''  to  organize  military  commissions,"  in  lieu 
of  the  "local  civil  tribunals,"  for  the  trial  and  punishment  of 
"  all  disturbers  of  the  public  peace  and  criminals,"  ^ — it  was 
lield  by  the  Judge  Advocate  General  as  follows : 

That  the  military  commissions  convened  under  the  Act 
would  properly  be  governed,  as  to  their  form  of  i^rocedure, 
by  the  rules  and  forms  governing  military  commissions  under 
the  laws  of  war,  (see  Military  Commission,  I,  §  2,)  while, 
as  to  their  jurisdiction  and  power  of  punishment,  they  would 
in  general  properly  be  regulated  by  the  local  statutes  govern- 
ing the  courts  of  which  they  were  substitutes.     XXIX,  406 : 

That,  being  substitutes  for  the  State  criminal  courts,  they 
were  authorized  to  take  cognizance  of  offences  committed, 
(but  not  brought  to  trial,)  before  the  date  of  the  Act,  equally 
as  of  those  committed  after  such  date.  XXV,  424 ;  XXVI, 
234: 

That  cases  of  soldiers  offending  against  the  criminal  law, 
whose  offences  were  not  within  the  jurisdiction  of  a  court 
martial,  might  legally  be  brought  to  trial  before  military 
commissions  convened  under  the  Act.     XXVI,  487,  543: 

That  commissions  ordered  under  this  Act,  beiug  in  lieu  of 
the  State  tribunals,  could  not  assume  to  take  cognizance  of 
a  case  Avithin  the  jurisdiction  of  a  court  of  the  United  States 
in  operation  in  the  district.     XXVIII,  612: 

That  sentences  duly  adjudged  by  comnn'ssions  convened 


^  The  constitutionality  of  this  Act  and  the  legality  of  the 
institution  under  it  of  military  commissions  are  affirmed  by 
Atty.  Gen.  Hoar  in  XIII  Opins.  59-67. 


MILITARY  co:mmission.  333 

unde-i^  this  statute,  and  which  had  been  duly  and  finally  aj)- 
proved  by  the  comi^etent  authority,  (see  sec.  4  of  the  statute,) 
might  legally  be  executed  prior  to  the  passage  of  the  Act  ad- 
mitting to  representation  in  Congress  the  State  in  which  the 
offence  was  committed;  but  that  such  sentences,  not  carried 
into  effect,  (or  of  which  the  execution  had  not  been  entered 
upon,)  at  that  date,  could  not  thereafter  legally  be  enforced.^ 
And  held  generally,  that  all  proceedings  of  military  commis- 
sions which  remained  i^ending  or  incomi^lete  at  such  date 
became  thereupon  terminated.  XXYII,  89,  90,  93;  XXVIII, 
51;  XXIX,  620;  XXX,  181. 

31.  The  jurisdiction  of  a  military  commission  convened 
under  the  law  of  war  may  be  exercised  up  to  the  date  of  a 
peace  agreed  upon  between  the  hostile  parties  or  the  declara- 
tion by  the  comj^etent  authority  of  the  termination  of  the  war 
status.'    XX,  484. 

12.  A  military  commission,  convened  for  the  trial  of  offences 
under  the  law  of  war,  has  no  jurisdiction  of  civil  suits  or  pro- 
ceedings, either  based  upon  contract  or  brought  to  recover 
damages  on  account  of  private  transactions  or  personal  inju- 
ries.^ Ill,  190;  V,  86',  IX,  205;  XI,  657.  [As  to  the  civil 
jurisdiction  of  special  courts  and  commissions  instituted  dur- 
ing the  late  war,  see  Law  of  War  §  12,  note.] 

MILITARY  COMMISSION,  III— SENTENCE. 

Except  in  a  case  of  a  spy,  whose  sentence  must  be  death, 
(Sec.  1343,  Eev.  Sts.,)  the  discretion  of  the  Military  Commis- 
sion in  the  imi)osition  of  sentence  is  not  in  terms  restricted  or 
defined  by  the  existing  law.  VII,  62. '  The  sentence,  how- 
ever, should  award  a  criminal  punishment:  a  judgment  of 
debf  or  damages  would  be  irregular  and  i^roperly  disapproved. 
Ill,  190.     So  a  military  commission  cannot  properly  impose  a 

^  Comi)are  United  States  v.  Tynen,  11  Wallace,  88,  where  it 
is  held  that — "There  can  be  no  legal  conviction,  nor  any  valid 
judgment  i^ronounced  upon  conviction,  unless  the  law  creating 
the  offence  be  at  the  time  in  existence."  And  to  a  similar 
effect  see  United  States  v.  Finlay,  1  Ab.  U.  S.  R.  364. 

2  See  XIV  Opins.  of  Attys.  Gen.  250,  where  this  principle  is 
api)lied  to  an  Indian  war.     See  also  V  Opins.  o8. 

3  See  State  v.  Stillman,  7  Cold.  341;  G.  O.  1,  Dept.  of  the 
Missouri,  1862. 


334        MILITARY   GOVERNMENT — MILITARY   OFFENCE. 

punishment  reserved  by  law  for  courts  martial — as  dismissal 
or  suspension  in  a  case  of  an  officer,  or  dishonorable  discharge 
in  a  case  of  an  enlisted  man.  X,  356.  Where  a  military  com- 
mission is  acting  practically  as  a  substitute  for  a  State  crim- 
inal court,  it  should,  in  general,  in  determining  the  proper 
measure  of  punishment  to  be  inflicted,  take  into  consideration 
the  State  statute  law,  if  any,  prescribing  the  penalty  or  pen- 
alties for  the  offence.^    XXIX,  406. 


MILITARY  GOVERNMENT. 

See  law  OF  WAR  $  1. 
MARTIAL  LAW  §  1. 
MILITARY  COMMISSION,  II  $  2,  and  note  2. 


MILITARY  OFFENCE. 

Military  offences  proper  are  simply  violations  of  the  laws, 
orders,  or  rules  of  discipline  governing  the  military  state. 
Such  ofl'ences  are  neither  "felonies"  nor  "misdemeanors"  in 
the  legal  sense  of  those  terms,  nor  can  an  ofl&cer  or  soldier, 
convicted  of  an  offence  of  this  class,  properly  be  subjected  to 
any  of  the  consequences  attaching  to  a  felony.  Thus  held 
that  a  soldier  convicted  by  a  court  martial,  assembled  within 
the  State  of  Kansas,  of  the  offence  of  swearing  falsely  as  a 
witness  before  a  previous  military  court,  could  not  be  sub- 
iected  to  any  disability  attaching  to  a  conviction  of  perjury 
as  a  felony  by  the  laws  of  that  State;  his  offence,  as  found, 
not  being  a  civil  crime  but  simply  "conduct  to  the  prejudice 


^Except  where  the  death  sentence  was  i)ronounced,  the 
punishment  adjudged  by  military  commissions  during  the 
late  war  was,  in  the  great  majority  of  cases,  an  imprisonment 
for  a  certain  term  or  '  till  the  end  of  the  war.'  Fines  were  not 
rarely  imposed,  and  a  sending  beyond  the  lines  of  the  U.  S. 
forces  was  not  infrequent.  A  confiscation  of  property  was 
also  sometimes  adjudged.  In  many  instances,  in  lieu  of  any 
punishment,  it  was  directed  or  recommended  by  the  commis- 
sion that  the  accused  be  required  to  take  an  oath  of  allegiance, 
or  give  a  i)arole,  and  in  some  cases  also  to  give  a  bond  for 
future  loyal  behavior. 


MILITARY  PRISOIs\  335 

of  good  order  and  military  discipline."  ^    YIII,  332  j  XXXVIII, 
219.    [See  Perjury  §  1.] 

MILITARY  PRISON. 

1.  The  proceeds  of  sales  of  articles  manufactured  by  the 
prisoners  at  the  Military  Prison  are  clearly  public  funds,  and, 
in  the  absence  of  any  statutory  provision  in  regard  to  their  dis- 
positiouj — Sec.  1351,  Eev.  Sts.  only  requiring  that  they  shall  be 
*' accounted  for"  as  received  by  the  commandant, — can  not  le- 
gally be  expended  in  repairing  or  improving  the  i)rison  build- 
ings, or  otherwise,  without  authority  of  Congress.    XLII,  24. 

2.  Held  that,  under  the  general  authority  vested  in  the 
Secretary  of  War  by  Sec.  1351,  Eev.  Sts.,  to  direct  as  to  the 
disj)osition  of  the  articles  manufactured  by  the  convicts  at 
the  Military  Prison  at  Leavenworth,  and  in  the  absence  of 
anything  in  Sec.  3710,  Eev.  Sts.,  or  elsewhere  in  the  statute 
law  relating  to  contracts,  i)recluding  such  action, — the  Secre- 
tary was  empowered  to  order  that  the  shoes  made  by  the 
prisoners  should  be  turned  over  to  the  quartermaster  depart- 
ment for  issue  to  the  army.     XLI,  427. 

3.  Held  that  the  provisions  of  Sees.  1345  and  134G,  in  respect 
to  the  organizing,  &c.  by  the  Secretary  of  War,  of  the  Board 
of  Government  of  the  Military  Prison,  did  not  simply  vest  a 
discretion  in  the  Secretary  to  do  or  not  to  do,  in  whole  or  in 
part,  as  therein  i)rescribed,  but,  imposing  as  they  did  a  public 
duty,  should  be  construed  as  mandatory  uj^on  him,  (see  Stat- 
utes— CONSTRUCTION  OF  §  3,)  and  thus  as  properly  requiring 
him  to  maintain  such  Board  with  the  members,  both  military 
and  civil,  as  specified  in  the  former  section,  and  with  it  to 
visit  the  jirison  as  directed  in  Sec.  134G.    XLI,  675. 

See  army  REGULATIONS  §  2. 

COURT  MARTIAL,  II  8,  9,  and  notes. 
IMPRISONMENT  §  2,  8,  18,  note. 
SUBSISTENCE  STORES  $  2. 

^The  term  "convicted  of  a  felony,"  employed  in  Sec.  1118, 
Eev.  Sts.,  (as  amended  by  the  Act  of  Feb.  27,  1877,)  forbid- 
ding the  enlistment  of  i)ersons  "  convicted  of  a  felony,"  refers 
clearly  to  a  conviction  by  a  criminal  court  of  the  United  States, 
or  of  a  State  or  Territory,  (or  of  the  District  of  Columbia,)  of 
an  offence  made  a  felony  by  the  laws  of  the  same,  or  by  the 
common  law  as  recognized  therein. 


336  MILITARY  EESERYATION. 

MILITARY  RESERVATION.! 
1.  A  military  reservation,  being  simply  territory  of  the 

^Tlie  Constitution,  (Art.  lY,  Sec.  3,  §  2,)  Las  vested  in  Con- 
gress the  exclusive  power  ^'to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory ^''^  (held  in  U.  S. 
V.  Gratiot,  14  Peters,  537,  to  mean  "lands,")  ''or  other  Y>rop- 
erty  belonging  to  the  United  States.'^  As  a  consequence  per- 
haps of  the  indefiniteness  of  this  grant,  (see  VII  Opins.  of 
Attys.  Gen.  574,)  no  general  enactment  providing  for  the 
setting  apart  of  land  for  military  reservations  has  ever  been 
made  by  Congress.  In  a  few  cases,  indeed,  a  8])ecial  authority 
to  establish  a  military  reserve  lias  been  conferred  upon  the 
President  by  statute,  but  the  great  majority  of  the  military 
reservations  heretofore  located  or  now  existing  have  been 
made  by  the  President  without  any  such  specific  authority 
whatever.  But  though  no  general  authority  has  been  directly 
given  by  Congress  for  the  reserving  of  lands  for  military 
purposes,  an  authority  for  the  purpose  has  been  deemed  to 
exist,  and  this  authority  is  found  in  the  usage  of  the  executive 
department  of  the  goveinment,  as  indirectly  sanctioned  by 
Congress  in  repeated  i^re-emption  Acts,  Acts  relating  to  the 
survey  of  the  public  domain,  appropriation  Acts,  &c.,in  which 
lands  reserved  for  military  purposes  by  the  President  have 
been  in  general  terms  excepted  from  sale,  exempted  from 
entry,  &c.,  or  si)ecial  provision  has  been  made  for  the  cost  of 
improvements  to  be  erected  upon  the  same.  In  Grisar  v. 
McDonald,  G  Wallace,  381,  the  U.  S.  Supreme  Court,  by  Field 
J.,  observes: — "From  an  early  period  in  the  history  of  the 
government,  it  has  been  the  practice  of  the  President  to  order, 
from  time  to  time,  as  the  exigencies  of  the  public  service 
required,  parcels  of  land  belonging  to  the  United  States  to 
be  reserved  from  sale  and  set  apart  for  public  uses."  Further — 
"The  autliority  of  the  President  in  this  respect  is  recognized 
in  numerous  Acts  of  Congress."  The  court  then  cites  several 
statutes  as  containing  this  recognition,  including  the  pie- 
emption  Acts  of  May  29,  1830,  and  Sept.  4,  1841,  and  adds — 
"The  action  of  the  President  in  the  making  the  (military) 
reservations,"  (the  title  to  which  was  at  issue  in  the  i^articular 
case,)  "was  indirectly  approved  by  the  legislation  of  Congress 
in  api)ropriating  moneys  for  the  construction  of  fortifications 
and  other  public  works  upon  theju."  And  see  XIL  Opins.  of 
Attys.  Gen.  381  j  XIV  Id.  182 ;  Wilcox  v.  Jackson,  13  Peters, 
512 ;   United  States  v.  Hare,  4  Sawyer,  G53. 

It  is  moreover  to  be  noted  that  the  provision  of  the  Act  of 
1841,  referred  to  by  the  Suiueme  Court,  has  been  incorporated 
as  a  general  enactment  in  the  Eevised  Statutes,  in  the  Chap- 
ter,  (Ch.  4  of  Title  XXXII,)  on  Pre-emptionsj   Sec.   2258 


MILITARY  EESERVATIOX.  337 

United  States  Tvitlidrawn  from  sale,  pre-emption,  &c.,^  the 
mere  fact  of  the  establishing  of  such  a  reservation  cannot 
affect  the  poAver  of  the  State  or  Territorial  authorities, 
(according  as  it  may  be  located  in  a  State  or  Territory,)  to 
serve  civil  or  criminal  process  therein,  or  to  attach  or  levy  upon 
personal  property,^  except  in  so  far  of  course  as  such  service 
may  be  specially  precluded  or  restricted,  by  law,  as  to  military 
persons  in  general.^  Where  indeed  there  has  been  a  cession 
of  exclusive  jurisdiction  over  the  land  by  the  State  to  the 
United  States,  the  question  whether  the  State  authorities 
may  still  serve  i)rocess  within  the  reservation  on  account  of 
liabilities  incurred  or  crimes  committed  outside  of  its  limits, 

expressly  excei)ting  from  the  lands  of  the  United  States 
'^subject  to  the  rights  of  i)re-emption" — ''lands  included  in 
any  reservation  by  any  treaty,  law,  or  i)roclamation  of  the 
President  for  any  purpose."  [And  see  Sec.  2393,  specilically 
excepting  military  reser^'ations  from  the  operation  of  the  laws 
authorizing  the  establishing  of  town-sites.J 

The  "proclamation'^  of  the  President  reserving  lands  for 
military  purposes  is  usually  in  the  form  of  a  military  General 
Order,  issued  by  the  Secretary  of  War,  whose  act  in  this,  as 
in  other  administrative  proceedings  pertaining  to  the  military 
administration,  is  in  legal  contemplation  the  act  of  the  Presi- 
dent whom  he  represents.  [See  Secretary  of  War.]  But 
no  head  of  a  department  or  executive  official  inferior  to  the 
President  can,  of  his  own  authority',  make  a  reservation  of 
public  lands.  The  i:>ower  is  vested  only  in  Congress  and  the 
President.    United  States  v.  Hare,  4  Sawyer,  053,  009. 

[In  this  connection  may  be  noted  the  ruling  of  Atty.  Gen. 
Bates,  (X  Opins.  359,)  in  opposition  to  that  of  Justice  McLean 
of  the  Supreme  Court,  (in  United  States  v.  The  Eailroad 
Bridge  Co.,  0  McLean,  517,)  but  apparently  concurred  in  by 
Atty.  Gen.  WiUiams,  (XIV  Opins.  210,)— to  the  effect  that 
where  a  tract  of  land  of  the  United  States  has  once  been 
legally  reserved  for  military  purposes,  the  President  is  not 
empowered,  in  the  absence  of  authority  from  Congress,  to 
reUnqimh  such  reservation  and  restore  the  land  reserved  to 
tlie  general  body  of  the  i)ublic  lands.] 

^See  YII  Opins.  of  Attys.  Gen.  571-5;  also  XIY  Id.  557. 

-!^ee  opinion  of  Judge  Advocate  General  published  in  G. 
O.  30,  Hdqrs.  of  Army,  1878 j  also  Cession  of  Jurisdic- 
tion §  1. 

^Asby  Sec.  1237,  Eev.  Sts.,  exempting  enlisted  men  from 
arrest  for  certain  debts ;  or  by  the  operation  of  the  provisions 
of  the  59tli  Article  of  War  as  to  the  form  to  be  observed  in 
making  criminal  arrests  of  military  i)ersons.  And  see  CiViL 
Process  §  2, 3. 
22  D 


338  MILITARY  RESERVATION. 

will  depend  upon  the  terms  of  the  cession.    XXXIX,  541. 
[See  Civil  Process  §  4.] 

2.  Held  that  an  Act  of  Congress  granting  a  Railroad  Com- 
pany a  right  of  way  through  •'  the  public  lands"  of  the  United 
States,  did  not  authorize  it  to  enter  and  construct  a  track  ui3on 
the  soil  of  a  military  reservation,  the  same  being  no  part  of 
the  ''public  lands 'V  ^^^^  that  such  entry  was  therefore  a 
trespass.    XXXIX,  146. 

3.  Land  which  has  been  set  apart  as  a  portion  of  an  Indian 
reservation  under  a  treaty  can  not  be  occui)ied  as  a  military 
reserve  ;2  nor  can  even  a  military  post  be  maintained  thereon, 
in  derogation  of  the  terms  of  the  treaty  or  against  the  consent 
of  the  Interior  Department.     XXXVIII,  170. 

4.  Seld  that  the  Act  of  March  3,  1875,  c.  151,  ''to  protect 
ornamental  and  other  trees  on  government  reservations  and 
on  lands  purchased  by  the  United  States,"  &c.,  which  makes 
penal  the  unlawful  cutting  or  injuring  of  such  trees,  was 
clearly  not  intended  to,  and  did  not,  preclude  the  reasonable 
cutting  of  wood  on  military  reservations,  under  the  direction 
of  the  proper  officer,  for  the  supplying  of  the  necessary  fuel 
for  the  garrisons  stationed  thereon ;  the  authority  to  estab- 
lish a  reservation,  where  in  fact  lawfully  existing,  being 
deemed  to  include  an  authority  to  efficiently  maintain  the 
same  when  established.    XXXIX,  8. 

5.  Held  that  the  right  to  the  "free  and  open  exploration 
and  purchase"  of  mineral  lands,  accorded  to  citizens,  «&c.,  by 
Sec.  2319,  Rev.  Sts.,  could  not  authorize  an  entry,  for  the  pur- 
pose of  i^rospecting  for  mines,  upon  a  military  reservation 
once  dulj^  defined  and  established  by  the  President  j  the  min- 
eral lands  intended  by  the  statute  being  clearly  such  as  are 
included  within  the  "  i}ublic  lands "  of  the  United  States. 
XXXVIII,  596.     [See  §  2,  note,  sn^ra.] 

1  Wilcox  V,  Jackson,  13  Peters,  499,  513;  V  Opins.  of  Attys. 
Gen.  578;  VI  Id.  670;  VII  Id.  574. 

=^By  Art.  VI  §  2  of  the  Constitution,  "all  treaties  made 
under  the  authority  of  the  United  States"  are  declared  to  be 
"the  supreme  law  of  the  land";  and  Indian  reservations 
"have  generally  been  made  through  the  exercise  of  the  treaty- 
making  power,  and  in  fullillment  of  treaty  obligations."  XIV 
Opins.  of  Attys.  Gen.  182.  That  land  cannot  be  reserved  or 
occupied  for  military  purposes  to  the  prejudice  of  a  title  pre- 
viously vested  in  an  iiulividual  or  a  corporation,  see,  further, 
IX  Opins.  339^  XIII  Id.  469. 


MILITARY  STOREKEEPER.  339 

6.  Where  certain  persons  had  entered  unlawfully  upon  a 
military  reservation,  and  had  proceeded  to  cultivate  the  soil 
of  the  same  for  their  personal  benefit  and  to  lead  off  water, 
needed  for  the  use  of  the  garrison,  in  order  to  irrigate  the 
ground  so  cultivated, — advised  that  the  commandant  be  in- 
structed to  give  such  persons  reasonable  notice  to  quit  with 
their  property,  and  if  they  did  not  comply,  to  remove  them 
by  military  force  beyond  the  limits  of  the  reservation.^  XLII, 
256. 

7.  In  the  absence  of  any  statute  directly  or  by  necessary 
imi)lication  extending  the  powers  of  the  local  government  of 
the  District  of  Columbia  over  the  military  reservation  and 
post  at  the  Arsenal  in  Washington,  held,  (May,  1879,)  that 
the  Health  Officer  appointed  by  the  Commissioners,  (consti- 
tuting such  government,)  would  not  be  empowered  of  his  own 
authority  and  without  the  consent  of  the  mihtary  commander, 
to  enter  upon  such  reservation,  and  remove  or  abate  a  nuis- 
ance deemed  by  him  to  exist  thereon.  The  effect  of  the  legis- 
lation in  regard  to  the  government  of  the  District  is  to  except 
therefrom  the  public  buildings  and  grounds  of  the  United 
States,  which  are  left  to  the  charge  of  certain  specified  offi- 
cials. Even  farther  removed  from  such  government  is  the 
reservation  at  the  Arsenal,  the  same  being  a  military  post 
commanded  by  the  President  through  a  military  subordinate, 
and  governed  by  military  orders  and  regulations.   XLII,  270. 

See  cession  OF  JURISDICTION  ^  1,  5. 
CIVIL  PROCESS  ^  4,  5. 
POST  TRADER  $  8. 
PUBLIC  PROPERTY— DISPOSITION  OF  $  2, 3, 9, 10, 11. 

MILITARY  STOREKEEPER. 

1.  SeJd  that  military  storekeepers,  though  without  specific 
rank  till  after  the  passage  of  the  Act  of  July  28,  18GC,  were 
previously  commissioned  officers  of  the  army 5  and  that, 
therefore,  a  military  storekeeper,  appointed  in  1861,  though 

^As  to  the  authority  to  remove  trespassers  from  military 
reservations,  see  III  Opins.  of  Attys.  Gen.  268 ;  IX  Id.  106, 
4765  G.  O.  74,  Hdqrs.  of  Army,  1809.  That  this  authority  is 
not  deemed  to  be  aflected  by  the  x)rovision  of  s.  15  of  the 
Act  of  June  18,  1878, — see  Army — employjMENt  of  for 

CIVIL  PURPOSES  §  6. 


340  MISAPPROPRIATION— MUNITIONS   OF  WAR. 

Ills  rank  as  captain  dated  only  from  the  date  of  said  Act,  was 
entitled  to  tlie  increased  i^ay  on  account  of  length  of  service 
provided  for  commissioned  officers  of  the  army  by  Sec.  1262, 
Eev.  Sts.,  according  to  tlie  date  of  his  original  appointment. 
XXIII,  4755  XXX,  78;  XXXVI,  529. 

2.  Held^  in  view  of  the  provisions  of  pars.  30  and  31,  Army 
Ecgulations,  that  there  could  be  no  legal  objection  to  an  ex- 
change between  a  storekeeper  with  the  rank  of  captain  and  a 
captain  of  infantry.    XXX,  50. 

MISAPPROPRIATION. 

See  sixtieth  ARTICLE  $  13,  15. 

MITIGATION. 

See  one  HUNDRED  AND  TWELFTH  ARTICLE  $  6. 

MOUNTED  PAY. 

See  pay  AND  ALLOWANCES  $  15. 

MUNITIONS  OF  WAR. 

Congress,  by  the  Act  of  July  27,  1808,  in  authorizing  the 
construction  and  maintaining  of  a  TollBridge  between  George- 
town, D.  0.  and  the  Virginia  shore  of  the  Potomac,  expressly 
provided  that  such  bridge  should  remain  "open  and  free  for 
the  passage  of  troops  and  munitions  of  war  by  the  United 
States,  without  charge  or  comjiensation  of  any  kind."  Held^ 
in  view  of  the  fact  that  this  statute  was  enacted,  not  in  war 
nor  in  contemplation  of  war,  but  at  a  time  of  peace,  that 
the  proviso  should  be  regarded  as  of  general  application 
and  as  requiring  the  Bridge  Company  to  allow  the  transport 
of  ordnance  and  military  stores  of  the  United  States  across 
the  bridge  free  of  toll  at  all  times.  But  held  that  the  perma- 
nent use  of  the  bridge  as  a  support  and  duct  for  the  telegraph 
wire  connecting  the  office  of  the  Chief  Signal  Officer  in  Wash- 
ington with  the  Signal  Post  at  Fort  Whipple,  Ya.,  could 
scarcely  be  considered  as  a  "passage"  of  a  munition  of  war, 
and  that  the  Company  would  therefore  proj^erly  be  compen- 
sated for  such  use,  in  a  reasonable  sum,  from  the  annual  ap- 
propriation for  the  Signal  service.     XXVIII,  579. 

See  NINTH  ARTICLE. 

CAPTURED  PROPERTY  $  1. 


MURDER.  341 

MURDER. 

1.  Murder,  at  common  law,  is  'the  unlawful  killing,  by  a 
person  of  sound  memory  and  discretion,  of  any  reasonable 
creature  in  being  and  under  the  peace  of  the  State,  with  mal- 
ice aforethought  either  express  or  implied.'  ^  A  brief  descrip- 
tion of  murder  which  would  cover  all  cases  likely  to  be  brought 
before  a  court  martial,  under  Art.  dS  or  otherwise,  would  be — 
simply — liomicide  with  malice  aforethought.^  In  many  of  the 
States,  two  or  more  degrees  of  murder  are  now  distinguished 
by  the  statute  law;  murder  in  the  first  degree — generally 
defined  as  a  killing  accompanied  by  express  malice,  or  a  de- 
liberate unlawful  intent  to  cause  the  death  of  the  particular 
person  killed — being  ordinarily  alone  made  capital.  Man- 
slaughter, at  common  law,  is  distinguished  from  murder  by 
the  absence  of  malice  aforethought.  The  State  statutes  have 
generally  constituted  degrees  of  manslaughter  also ;  a  difler- 
ent  measure  of  punishment  being  assigned  to  each  degree. 
The  laws  of  the  United  States,  though  prescribing  different 
punishments  for  manslaughter  under  different  circumstances, 
recognize  no  discriminations  of  grades  in  either  manslaughter 
or  murder.    XI,  592. 

2.  Where  a  soldier,  while  a  superior  acting  in  the  line  of 
his  duty  was  attempting  to  arrest  him  for  a  grave  breach  of 
discipline,  discharged  his  loaded  musket  at  the  latter  with 
intent  to  kill  him,  but,  missing  him,  killed  a  soldier  standing 
near,  lield  that  the  crime  committed  was  clearly  murder.^ 
XX,  420. 

3.  The  taking  of  the  life  of  a  prisoner  of  war,  when  not 
concerting  an  escape  or  engaging  in  any  violence  or  breach 
of  discipline  justifying  such  an  extreme  measure,  is  as  fully 

^Coke,  Inst.  47;  4  Bl.  Com.  95;  1  East,  P.  C.  214;  1 
Russell,  Cr.  482;  1  Gabbett,  454;  2  Wharton,  Cr.  L.  §  930; 
3  Greenl.  Ev.  §  130;  Commonwealth  r.  Webster,  5  Cush.  304; 
G.  O.  23  Dept.  of  California,  18G5.  (Eemarks  of  Maj.  Gen. 
McDowell.)  ''Murder,  originally,"  says  Foster,  (p.  302,  citing 
Bracton  "  de  murdro,")  Avas  "  an  insidious  secret  assassination ; 
occulia  occisio,  millo  sciente  ant  vidente.''^  Xow,  secrecy  in  the 
commission  of  the  act  is  significant  only  as  evidence  of  legal 
malice. 

2  See  Holland  v.  State,  12  Ela.  117. 

^  Angell  V.  State,  3G  Texas,  542. 


342  MUSICIAN — MUTINY. 

murder,  as  could  be  any  homicide  committed  with  deliberate 
malice  in  time  of  peace.^    YII,  3G0. 

4.  Where,  in  a  case  of  an  officer  charged  with  the  murder 
of  a  soldier,  it  appeared  that  the  killing  was  done  with  a 
sword  properly  worn  as  a  side-arm,  held  that  its  employment 
did  not  justify  the  same  presumption  of  deliberate  intent  to 
kill  which  the  use  of  a  deadly  weapon  authorizes  in  cases  in 
general.2    XII,  96. 

See  sixty  SECOND  ARTICLE  $  1. 
MANSLAUGHTER  $  2. 
MILITARY  COMMISSION,  II  $  4,  5. 

MUSICIAN. 

See  APPOINTMENT  $  4. 
CHIEF  MUSICIAN. 


MUSTER  OUT 

See  SIXTIETH  ARTICLE  $  17,  note. 
MEMBER  OF  COURT  §  4. 
PAY  AND  ALLOWANCES  $  2. 


MUSTER  ROLL. 

EE  DESERTION  §  3. 
EVIDENCE  $  9. 


MUTINY. 

See  TWENTY  SECOND  ARTICLE. 
MANSLAUGHTER  §  4. 


^  While  it  is  lawful  to  kill  an  enemy  ^'in  the  heat  and  exer- 
cise of  war,"  yet  '^to  kill  such  an  enemy  after  he  has  laid 
down  his  arms,  and  especially  when  he  is  confined  in  i)rison, 
is  murder."    State  v.  Gut,  13  Minn.  341. 

2  Compare  case  in  G.  O.  63,  Dept.  of  the  Tennessee,  1863. 


NATIONAI.  CEMETERY.  343 


N 


NATIONAL  CEMETERY. 

1.  The  appraisement  of  land  for  a  national  cemetery,  as 
finally  made  by  a  U.  S.  Court  under  Sees.  4871  and  4872,  Eev. 
Sts.,  is  conclusive  upon  the  Secretary  of  War,  who  must 
thereupon  pay  the  appraised  value  as  indicated  in  the  latter 
section.  If  indeed  there  has  been  fraud  in  the  valuation  by 
which  the  court  has  been  deceived  in  its  decree,  or  its  orig- 
inal appraisement  is  deemed  excessive^  it  may  properly  be 
moved  for  a  new  appraisement  on  the  part  of  the  United 
States.^    XXVI,  G17. 

2.  Held  that,  notwithstanding  the  provision  in  Sec.  4872, 
Eev.  Sts.,  that  the  jurisdiction  of  the  United  States  over  land 
taken  for  a  national  cemetery,  by  tlie  right  of  eminent  domain, 
"shaU  be  exclusive," — such  a  jurisdiction,  where  the  land  is 
within  a  State,  cannot  legally  be  vested  in  the  United  States, 
except  by  the  cession  of  the  State  legislature.  In  the  absence 
of  such  cession  on  the  part  of  the  State  sovereignty,  an  Act 
of  Congress  must  be  powerless  to  confer  such  an  authority .'- 
XXVII,  661. 

3.  Held  that  the  Act  of  July  1,  1870,  s.  1,  (as  incorporated 
in  Sec.  4882,  Eev.  Sts.,)  so  far  assimilated  land  purchased  for 
a  national  cemetery  to  the  sites  and  lands  specified  in  Sec.  355, 
Eev.  Sts.,  as  to  make  it  proper,  before  expending  in  improve- 
ments upon  such  land  money  appropriated  therefor  by  Con- 
gress, to  obtain  the  consent  of  the  State  legislature  to  the 
liurchase,  (without  which  exclusive  jurisdiction  could  not  be 
vested  in  the  United  States,)  as  well  as  the  opinion  of  the 
Attorney  General  in  favor  of  the  validity'  of  the  title:  this 
latter,  esi^eciaUy,  as  Sec.  4870,  Eev.  Sts.,  requires  the  Secre- 

^See  XIV  Opius.  of  Attys.  Gen.  27. 

^See  the  subsequent  opinion  of  the  Atty.  Gen.,  in  XIII, 
Opius.  131. 


344  NEW  IMEMBER — NEW  TRIAL. 

tary  of  War  to  obtain  from  tbe  owner  of  tlie  land,  upon  the 
purchase,  ^'  the  title  in  fee  simple  for  the  same."  ^    XXXI,  500. 

4.  Held  that  the  general  annual  approi)riation  for  the  main- 
taining of  the  national  cemeteries  could  not  legally  be  ex- 
pended for  the  x)urchase  of  other  landj  even  if  such  land 
was  proposed  to  be  used  for  the  interment  of  soldiers ;  but 
that  for  such  a  purchase,  as  for  any  purchase  of  laud  by  the 
United  States,  specific  authority  must  be  obtained  from  Con- 
gress.   XLI,  50.    [See  Public  Property  §  5.] 

5.  By  Sec.  4881,  Rev.  Sts.,  the  sui)erintendent  of  a  national 
cemetery  is  authorized  to  arrest  persons  who  injure,  &c. 
grave-stones,  trees,  shrubs,  &c.,  within  the  cemetery.  Held 
that  he  could  not,  under  this  authority,  legally  arrest  a  per- 
son who  fired  a  gun  into  or  across  the  cemetery  without  caus- 
ing any  such  injury  as  is  specified  in  the  statute,  but,  for  the 
arrest  aud  punishment  of  such  a  trespasser,  must  have  re- 
course to  the  local  authorities.    XXXII,  425. 

6.  Superintendents  of  national  cemeteries  are  no  part  of  the 
armj^  but  civilians,  being  required  indeed  by  Sec.  4874,  Rev. 
Sts.  to  be  selected  from  persons  who  have  been  honorably  dis- 
charged from  the  military  service.  They  are  therefoie  of 
course  not  subject  to  the  articles  of  war  or  to  trial  by  court 
martial,-  (see  Sixty  Third  Article  §  8,)  and,  for  any  seri- 
ous misconduct  on  the  part  of  a  superintendent,  a  removal 
from  office  would  be  the  only  adequate  remedy.  XXXY,  34 ; 
XXXVIII,  381,  557. 

NEW  MEMBER. 

See  member  OF  THE  COURT  $  3. 

NEW  TRIAL. 

New  or  second  trials  have  been  of  the  rarest  occurrence  in 
our  military  service.  They  have  only  been  had,  and  are  only 
authorized,  Avhere  the  sentence  adjudged  upon  the  first  trial 


^Compare  the  opinion  of  the  Atty.  Gen.  in  XIII  Opins. 
131,  given  however  before  the  passage  of  the  Act  of  1870. 
And  see  XIV  Oi)ins.  557. 

^  See  the  subsequent  opinion,  concurring  in  this  view,  of  the 
Attorney  General,  published  in  G.  0. 25,  Hdqrs.  of  the  Army, 
1878. 


NOLLE  PROSEQUI.  345 

has  been  disaijproved  by  the  reviewing  authority  and  the  ac- 
cused has  aslced  for  a  second  trial.  It  Avas  held  at  an  early 
pcLiod  by  Attorney  General  Wirt/  that  the  prohibitory-  pro- 
vision of  the  Articles  of  War,  (now  contained  in  Art.  102,) 
that  '•''  no  person  shall  be  tried  a  second  time  for  the  same 
offence,"  did  not  apply  to  a  case  in  which  the  accused  himself 
requested  a  new  trial,  the  objection  to  such  trial  being  deemed 
to  be  subject  to  be  ivaived  by  the  consent  and  action  of  the 
party  tried.  The  privilege  of  applying  for  and  being  allowed 
a  re-trial — for  it  is  not  a  right,  since  the  trial  may  be  granted 
or  denied  at  the  discretion  of  the  proper  superior — has  natu- 
rally been  but  seldom  exercised  5  parties  convicted  and  sen- 
tenced being  in  general  satisfied  that  the  i:)rocee clings  in  their 
cases  should  be  terminated  by  the  disapproval,  on  whatever 
grounds  the  same  may  be  based.  The  principal  instances  of 
new  trials  in  our  practice  are — that  of  Captain  Hall,  (in  whose 
case  Mr.  Wirt's  opinion  was  given,)  and  those  of  which  the 
proceedings  are  published  in  G.  O.  18,  War  Dept.,  ISGl,  and 
G.  O.  8,  9,  and  26,  First  Mil.  Dist.  1869.  After  a  sentence 
has  been  duly  approved  and  has  taken  effect,  the  granting  of 
a  new  trial  is  of  course  beyond  the  power  of  a  military  com- 
mander or  the  President.    XXXVIl,  492  5  XXXIX,  233. 

NOLLE  PROSEaUL 

A  prosecution  before  a  court  martial  proceeds  in  the  name 
and  by  the  authority  of  the  government.  [See  Art.  90.]  The 
United  States,  therefore,  through  the  Secretary  of  War,  or 
the  military  commander  who  has  convened  the  court,  may 
require  or  authorize  the  judge  advocate  to  enter  a  nolle  prose- 
qui in  a  case  on  trial,  (or,  less  technically,  withdraw  or  dis- 
continue the  prosecution,)  either  as  to  all  the  charges  where 
there  are  several,  or  as  to  any  i^articular  charge  or  specifica- 
tion. But  the  judge  advocate  cannot  exercise  this  authority 
at  his  own  discretion,  nor  can  the  court  direct  it  to  be  exer- 
cised. IX,  488,  533.  [See  Court-Martial,  I  §  7 ;  Judge 
Advocate  §  10.] 

ij  Opins.  of  Attys.  Gen.  233.    And  see  VI  Id.  205. 


346  NON-COMIVIISSIONED   OFFICER — ^NOTICE. 


NON  COMMISSIONED  OFFICER. 

A  superior  officer  who  yields  to  a  non-commissioned  officer 
powers  or  i^rivileges  not  appropriate  to  liis  rank,  and  to  wbich 
lie  is  not  properly  entitled,  places  tlie  latter  in  a  false  position, 
while  at  the  same  time  making  himself  in  great  part  resi^on- 
sible  for  any  abuse  of  authority  on  the  part  of  his  inferior. 
This  is  particularly  true  in  counection  with  the  recruiting 
service.^  Thus  where,  by  the  neglect  or  acquiescence  of  an 
officer  in  charge  of  a  recruiting  station,  his  sergeant  was  en- 
abled to  exercise  an  authority  not  contemplated  by  the  Army 
Eegulatious,  and  was  thus  led  to  uiake  enlistments  in  coutra- 
vention  of  the  rules  prescribe  d  by  the  same, — heldj  upon  his 
conviction  of  the  offences  involved,  that  his  acts  were  to  be 
regarded  as  materially  extenuated  by  the  dereliction  of  his 
superior.    XII,  402. 

See  twenty  FIRST  ARTICLE  §  6. 
APPOINTMENT  ^  4,  14. 
CHIEF  MUSICIAN  ^  2. 
COMPANY  COMMANDER. 
FORFEITURE,  II  ^^  12. 
REDUCTION  TO  THE  RANKS,  II  $  2. 


NON  INTERCOURSE. 

See  FORTY  FIFTH  ARTICLE  $  4. 
LAW  OF  WAR  §  1-5. 


NOTICE. 

See  DISMISSAL,  I  M ;  ID.  II  $  5. 
ORDER,  I  ^^  2. 
RESIGNATION  §  2,  3. 
SUSPENSION  §  13. 


J  a 


Especially  are  officers"  (on  recruiting  service)  ''  warned 
not  to  intrust  too  much  authority  or  discretion  to  non-com- 
missioned olilcers,  who  may  be  tempted  to  a  tyrannical  ex- 
ercise of  power."     G.  O.  120,  War  Dept.,  1874. 


OATH.  347 


0. 


OATH,  I— AUTHORITY  TO  ADMINISTER. 

1.  An  officer  of  the  army  has  no  authority,  virtute  offlcii,  to 
administer  an  oath.  He  is  indeed  specially  emi^owered  to  ex- 
ercise this  function,  under  certain  circumstances,  by  statute — 
as  by  the  Second,  Eighty  fourth  and  Eighty  fifth  Articles  of 
War ;  and  further  by  Sec.  183,  Eev.  Sts.,  in  a  case  where, 
being  an  officer  of  the  War  Department,  he  is  detailed  to  in- 
vestigate frauds,  &c.    XXXIY,  648. 

2.  So,  Par.  1031  of  the  Army  Eegulations  authorizes  the 
administering  of  oaths  under  certain  contingencies  by  officers 
of  the  army.  But  this  authority  is  not  a  general  one,  but  is 
properly"  to  be  exercised  only  in  connection  with  the  subjects 
of  the  i^revious  paragraphs  in  pari  materia,  and  is  thus  con- 
fined to  cases  of  affida^'its  and  dei^sitions  made  in  regard  to 
the  losing  or  damaging  of  public  i>roperty  by  officers  or  sol- 
diers, and  particularly  those  made  in  the  accounting  for  such 
loss  or  damage  by  the  parties  resi)onsible.  The  authority 
here  given  can  not  legally  be  extended  to  quite  other  purpo- 
ses,^— as  for  example,  the  administering  an  oath  to  a  witness 
on  giving  his  deposition  to  be  used  before  a  court  martial,  or 
to  a  surety  justify hig  upon  an  official  bond,  <S:c.  XXX,  CGOj 
XXXI,  373. 

See  eighty  EIGHTH  ARTICLE  Q  11. 
BOARD  OF  SURVEY  ^S  2. 
JUDGE  ADVOCATE  $  26. 

^  Compare  the  view  expressed  in  G.  C.  M.  O.  74,  Dept.  of 
Texas,  1879. 


348  OATH. 


OATH,  II— OF  COURT,  WITNESS,  REPORTER,  &C. 

See  eightieth  ARTICLE  $  6. 
EIGHTY  FOURTH  ARTICLE. 
NINETY  SECOND  ARTICLE. 
CLERK  ^  2. 
INTERPRETER  §  3. 
MILITARY  COMMISSION,  I  $  3. 
RECORD  $  1,  f. 
REPORTER  ^  4. 


OATH,  III— OF  ENLISTMENT. 
See  second  ARTICLE. 

OATH,  IV— OF  OFFICE. 

1.  The  Act  of  July  2,  18G2,  now  coiitamed  in  Sec.  1756,  Eev. 
Sts.,  requires  that  '^  every  person  elected  or  appointed  to  any 
office  of  honor  or  i)rofit,  either  in  the  civil,  military  or  naval 
service,"  (with  certain  exceptions  stated,)  shall,  before  enter- 
ing ui^on  the  duties  of  such  office,  take  and  subscribe  a  cer- 
tain form  of  oath  recited  in  the  enactment.  Held  that  the 
term  "  office "  referred  to  a  public  office  established  by  law 
with  a  defined  tenure,  function,  &c.,  (see  Civil  Office  §  3,) 
and  therefore  that  aii  agent  emiiloyed  by  the  Secretary  of 
War,  under  his  general  authority,  and  for  a  temporary  pur- 
pose, and  whose  duties,  «&c.,  were  not  defined  by  any  statute, 
was  not  an  incumbent  of  an  office  in  the  sense  of  the  statute 
or  required  to  take  the  prescribed  oath.     XXVI,  652. 

2.  Held  that  a  "  private  physician,"  temporarily  employed 
to  attend  officers  or  soldiers  under  the  authority  of  Par.  1309, 
Army  Eegulations,  was  not  an  officer  of  the  United  States, 
or  reciuired  to  take  the  oath  prescribed  by  the  Act  of  July  2, 
1862,  (Sec.  1756,  Eev.  Sts.)     XXYIII,  22^;  XXX,  437. 

3.  Held  that  an  officer  of  the  army,  in  entering  upon  his 
office,  could  not  be  allowed,  (in  the  absence  of  special  author- 
ity from  Congress,)  to  take  a  modified  oath  of  office  on  the 
ground  that  his  religious  convictions  would  not  permit  him  to 
take  the  oath  as  prescribed  in  the  statute.    XI,  503. 

4.  Held  that  a  person  who,  having  givxn  aid  to  the  enemy 
during  the  late  war,  had,  upon  his  disability  being  removed 


OFFICE— OFFICIAL    PAPEPvS.  349 

hj  Congress,  been  appointed  to  an  office  nnder  the  United 
States,  conld  not  legally  qnalify  liimself  for  the  same  by  tak- 
ing a  form  of  oath  of  office  prepared  by  himself,  but  could 
take  only  the  modiiied  form  specially  authorized  by  Sec.  1757, 
Eev.  Sts.    XIX,  89,  376. 

OFFICE. 

See  civil  OFFICE  ^  3,  and  note. 
OATH,  IV  ^  1,  2. 
SUSPENSION  ^  2,  4. 
TAX  §  1,  note. 


OFFICER'S  SERVANT. 

See  twenty  FIEST  ARTICLE  $  8. 
THIRTIETH  ARTICLE  §  5. 


OFFICIAL  PAPERS. 

The  official  papers  on  file  in  the  War  Department  are  not 
public  records  open  to  the  inspection  of  any  citizen ;  but,  ex- 
cept in  so  far  as  law  or  usage  has  provided  for  the  furnishing 
of  copies  of  the  same  or  the  publication  of  their  contents,  as 
in  the  case  of  the  records  of  military  courts, — such  i)ai)ers 
are  confidential  archives  of  the  government  which  may  be 
consulted,  or  of  which  copies  may  be  furnished,  only  by  the 
authority  of  the  Secretary  of  War,  except  where  the  courts 
of  law  may  i)roperly  require  their  exhibition  in  evidence.^ 
The  Secretary,  in  his  capacity  as  an  agent  of  the  public,  will 
of  course  be  disposed  to  grant  to  proper  persons  such  facil- 
ities for  obtaining  information  from  the  records  of  his  depart- 
ment as  may,  with  due  regard  to  the  public  interests,  be  ac- 
corded. Where  application  is  made  for  copies  of  papers,  it 
will  be  for  him,  in  view  of  the  nature  of  the  information 
sought,  the  use  proposed  to  be  made  of  the  same,  &c.,  to  de- 

^  The  admission  of  copies  in  evidence  is  authorized  by  Sec. 
88i^,  Eev.  Sts.  as  follows: — "Copies  of  any  books,  records, 
papers,  or  documents  in  any  of  the  Executive  Departments, 
authenticated  under  the  seals  of  such  departments  respect- 
ively, shall  be  admitted  in  evidence  equally  with  the  originals 
thereof." 


350  ORDER,  I — IN  GENERAL. 

termine,  iu  liis  discretion,  whether  the  private  interests  in- 
volved are  such  as  properly  to  outweigh  any  public  considera- 
tions which  may  exist  against  granting  the  privilege.  In 
furnishing  copies,  a  distinction  will  properly  be  made  between 
documents  in  the  nature  of  j^ermanent  records,  such  as  gen- 
eral or  si)ecial  orders,  muster  rolls,  discharges  of  soldiers 
commissions  of  officers,  &c.,  and  the  reports  and  commu- 
nications of  officers  addressed  to  military  superiors  or  to 
the  Secretary  of  War  in  the  line  of  their  official  duty.  The 
latter  are  generally  regarded  as  ]}rivileged  communications 
which  even  the  courts,  on  grounds  of  public  policy,  will  in 
general  hold  to  be  incomi^etent  testimony  and  of  which  they 
will  refuse  to  require  the  production  in  evidence.^  XIX,  375  5 
XX,  368,-  XXI,  142;  XXIV,  27;  XXYIII,  26. 

ORDER,  I— m  GEITERAL. 

1.  General  or  Special  Orders  relating  to  the  army,  issued 
from  the  War  Department  by  the  Secretary  of  War,  or  by 
his  direction,  are  to  be  presumed  to  be  made  by  the  authority 
of  the  President,  and  to  be  viewed  as  his  orders  equally  as  if 
he  had  subscribed  the  same.  VIII,  297.  [See  Secretary  of 
War.] 

2.  Xo  precise  rule  can  be  laid  down  as  to  ivlien  a  military 
order,  affecting  the  status,  pay,  rights,  or  duties  of  an  officer, 
can  be  said  to  become  oi)erative  as  regards  himself  A  gen- 
eral principle,  analogous  to  that  of  the  law  of  notice^  should 
ordinarily  be  applied  to  the  cases,  and  the  order  be  treated  as 

1  See  Dawldns  v.  Ld.  Paulet,  5.  L.  Eeps.,  Q.  B.  94 ;  Dickson 
V.  Earl  of  Wilton,  1  Fos.  &  Fhi.  419 ;  Home  v.  Ld.  Bentinck, 
2  Brod.  &  Bing.  130 ;  Beatson  v.  Skene,  5  Hurl.  &  Nor.  837, 
855,  (Am.  Ed. ;)  Gardner  v.  Anderson,  22  Int.  Eev.  Rec.  41; 
1  Greeul.  Ev.  §  251;  XI  Opins.  of  Attys.  Gen.  142;  XV  Id.— 
(Opius.  of  Oct.  12  and  Dec.  17,  1877.)  In  the  recent  case  of 
Maurice  v.  Worden,  (Ct.  of  Appeals  of  Md.,  April  T.,  1880,)— 
an  action  for  damages  on  account  of  a  libel  claimed  to  have 
been  contained  in  a  communication  of  the  class  indicated  in 
the  text, — it  was  held  that,  while  such  a  communication  is  not 
'^absolutely  privileged,"  it  is  "privileged  to  the  extent  that  the 
occasion  of  making  it  rebuts  the  i)resumption  of  malice,  and 
throws  upon  the  plaintiff  the  onus  of  proving  that  it  was  not 
made  from  duty  but  from  actual  malice  and  without  reasona- 
ble and  probable  cause." 


ORDER,  I — IN  GENERAL.  351 

not  legally  taking  effect  until  the  officer  is  personally  officially 
notified  of  the  same.  In  the  absence  of  an  actual  personal 
delivery  to  or  receipt  by  him  of  the  order  or  an  official  copy, 
the  fact  of  the  promulgation  of  the  same  at  his  proper  mili- 
tary station  Avill  in  general  be  presumed  to  have  given  him 
official  notice  of  its  contents — a  presumption,  however,  liable 
to  be  rebutted  by  proof  that,  without  any  fault  or  negligence 
of  his  own,  knowledge  of  the  same  was  never  actually  brought 
home  to  him, — as  where,  for  example,  he  was  at  the  time  ab- 
sent on  leave,  or  ill  at  a  distant  hospital,  or  a  prisoner  in  the 
hands  of  the  enemy,  and  therefore  was  not  notified  in  fact. 
XII,  23O5  Xiri,  284,  335-  XIX,  G9Gj  XXII,  506  5  XXVIII, 
423,  42G5  XXX,  481 5  XXXIY,  3G4. 

The  notice  of  the  order,  to  affect  the  officer,  should  thus  be 
a  personal  notice,  actual  or  constructive,  and  it  should  be  an 
official  notice.  Personal  information  of  the  same  given  to  him 
by  another  officer  or  person  not  specifically  authorized  or  re- 
quired by  his  duty  to  communicate  it,  will  not  in  general  be 
legally  sufficient;  nor,  on  the  other  hand,  will  the  mere  offi- 
cial publication  of  the  same  at  the  headquarters  of  the  Army, 
or  of  a  department,  without  bis  being  himself  personally  ad- 
vised of  the  same,  be  sufficient  to  give  effect  ta  the  order. 

Where  indeed  the  officer  fails  to  receive  personal  official 
notice  by  reason  of  some  fault  or  neglect  of  his  own,  as  be- 
cause of  his  having  absented  himself  without  authority  from 
his  station  when  the  order  arrived,  or  because,  being  on  de- 
tached service,  he  has  not  duly  advised  the  Adjutant  Gene- 
ral of  his  address  as  required  by  par.  4G8,  Army  Eegulations, 
he  will  not  be  permitted  to  take  advantage  of  his  own  wrong, 
and  the  promulgation  of  the  order,  upon  its  receipt,  at  his 
proper  station  or  last  reported  station,  will  be  held  to  operate 
as  due  and  effectual  notice.    XXXI,  327. 

3.  Up  to  the  date  of  i)ersonal  official  notice  of  an  order 
separating  him  from  the  military  service — as  an  order  of  sum- 
mary dismissal  by  the  President,  or  an  order  "wholly  retir- 
ing" him,  or  an  order  confirming  a  sentence  of  dismissal  ad- 
judged b3^  a  court  martial,  an  officer  is  entitled  to  be  paid  by 
the  United  States  the  regular  and  legal  pay  and  alloAvances 
of  his  rank.  XXIX,  115 ;  XXXI,  21G,  327  ;  XXXY,  178. 
The  date  which  the  order  bears  as  that  of  the  issuing  or  sign- 
ing of  the  same  is  immaterial,  if  notice  of  the  same  is  not 


352  ORDER,  I — IN  GENERAL. 

duly  brought  liome  to  the  officer  till  ou  a  subsequent  day. 
XXXI,  21G. 

4.  Where  an  officer,  who  had  been  tried  by  court-martial 
was,  while  awaiting  the  promulgation  of  the  i^roceedings, 
taken  prisoner  by  the  enemy,  and,  after  his  capture,  an  order 
was  i)ubli8hed  in  his  regiment,  by  which  a  sentence  pro- 
nounced by  the  court,  dismissing  him  from  the  service,  was 
duly  confirmed — lield^  that  as  he  was  beyond  the  control  of 
the  national  authorities  at  the  time  of  such  publication,  he 
could  not  be  regarded  as  notified  of  such  order  or  affected  by 
it ;  and  that  he  therefore  continued  to  be  an  officer  in  the 
army  and  entitled  to  pay  as  such  up  to  the  date — about  six 
months  subsequent  to  his  capture — when,  upon  being  ex- 
changed, he  returned  to  his  regiment  in  the  field  and  was 
first  notified  of  his  dismissal  as  approved.  XII,  230.  [See 
Prisoner  of  War  §  9  and  note.] 

5.  An  official  telegram  from  the  War  Department,  stating 
that  the  sentence  of  dismissal  of  an  officer  had  been  confirmed 
by  the  President,  reached  his  military  station — a  distant, 
frontier  post — on  a  certain  day,  and  the  same  was,  on  the 
same  day  exhibited  to  him  xiersonally  by  the  post  commander. 
IJnder  a  belief,  however,  entertained  by  the  latter,  that  this 
was  not  legal  notice,  the  officer  was  retained  on  full  duty  and 
continued  to  perform  such  duty  until — one  month  afterwards — 
a  copy  of  the  formal  order  i^romulgatiDg  the  proceedings  of 
the  trial  and  the  confirmation  of  the  sentence  was  duly  re- 
ceived by  mail  at  the  post,  and  was  delivered  to  the  officer  in 
person.  Held  that  while  the  telegram  might  well  be  regarded 
as  having  constituted  sufficient  official  notice  of  the  order  of 
approval,  the  same,  under  all  the  circumstances,  should  not 
properly  be  treated  as  having  become  operative,  so  far  as  the 
rights  of  the  officer  were  concerned,  till  the  receipt  of  the 
formal  copy.     XXXV,  471. 

G.  The  order  of  a  commanding  officer  will  in  general  con- 
stitute a  sufficient  authority  for  acts  regularly  done  by  an 
inferior  in  compliance  with  the  same.  Where,  however,  the 
order  of  the  superior  is  a  palpably  illegal  order,  the  inferior 
cannot  justify  under  it;^   and  if  brought  to  trial  by  court 

^  See,  on  this  subject.  Harmony  v.  Mitchell,  1  Blatch.  549, 
and  13  Howard,  421;  Durand  v.  IloUins,  4  Blatch.  451; 
Holmes  v.  Sheridan,   1  Dillon,  357 ;    McOall   v.  McDowell, 


ORDER,  II — CO?sVE>:iXG  A  COURT  MARTIAL.  353 

martial  or  sued  in  damages  for  an  act  done  by  bim  in  obedi- 
ence thereto,  the  order  will  be  admissible  only  in  extenuation 
of  the  ofi'ence.'  XXY,  592.  [But  see  Twenty  First  Ar- 
ticle §  7.] 

See  dismissal,  II. 
evidence  §  10. 


ORDEE,  II— CONVENING  A  COURT  MARTIAL. 

1.  Held  that  the  fact  that  the  order  convening  a  court  mar- 
tial was  dated  on  a  Sunday  did  not  affect  the  validity  of  the 
proceedings  in  a  case  tried  by  the  court  under  sucb  order. 
XXXVII,  317. 

2.  An  order  convening  a  general  court  martial  should 
properly  be  so  headed  and  authenticated,  or  so  authenticated, 
as  to  show  that  it  was  issued  by  an  ofdcer  authorized  by  the 
statute  law — the  72d  or  73d  Article  of  War — to  create  such 
a  tribunal.  Thus  held  that  such  an  order,  (issued  in  time  of 
war,)  signed  by  an  ofQcer  describing  himself  as  commanding  a 
''post"  or  "district"  was  j^r/wm /«c/e invalid  and  inoperative, 
though  capable  of  being  shown  to  be  valid  by  proof  that 
the  command  was  of  such  dimensions  and  so  situated  as 
practically  to  constitute  a  separate  army,  division,  or  separate 
brigade.  XI,  1G2, 170, 176,  214;  XXYI,  510.  [See  Seventy 
Third  Article  §  1-3.] 

3.  It  is  not  a  material  objection  to  the  validity  of  the  pro- 
ceedings or  sentence,  that  the  regiment  or  corps  of  a  member 
of  the  court  or  of  the  judge  advocate,  is  erroneously  stated 
in  the  order  convening  the  court,  provided  the  description 
given  is  sufficient  to  identify  the  officer.    XXXY,  433. 

4.  The  order  should  proi)erly  indicate  for  what  trial  or 
class  of  trials  the  court  is  convened,  or  its  terms  should  be 

Deady,  233,  and  1  Ab.  V.  S.  E.  212 ;  Clay  v.  United  States, 
DeA'ereux,  25 ;  United  States  v.  Carr,  1  Woods,  480 ;  Bates 
V.  Clark,  5  Otto,  204;  Ford  v.  Surget,  7  Otto,  5U4;  Skeen  v. 
Monkheimer,  21  Ind.  1 ;  Griffin  r.  Wilcox,  Id.  301 ;  Eiggs  v. 
State,  3  Cold.  851 ;  State  r.  Sparks,  27  Texas,  C32 ;  Keighlv 
v.  Bell,  4  Fost.  &  Fin.  805 ;  Dawkins  v.  Eokeby ,  Id.  831.  The 
law  is  the  same  although  the  order  to  the  inferiormay  emanate 
directly  from  the  President.  See  Eifort  r.  Bevins,  1  bush,  IGO. 
^  State  r.  Sparks,  supra ;  McCall  v.  McDowell,  supra;  Milli- 
gan  V,  Hovey,  3  Bissell,  13 ;  Beckwith  v.  Bean,  8  Otto,  2G6. 
23  D 


354  ORDER,  III — OF   PROMULGATION. 

SO  general  in  this  particular  as  to  authorize  the  court  to 
entertain  any  case  that  may  be  referred  to  it  for  trial.  A 
courtj  restricted  by  the  order  convening  it  to  the  trial  of  a 
special  case  or  class  of  cases,  would  not  be  emx)owered,  (in 
the  absence  of  further  orders,)  to  take  cognizance  of  a  case 
not  within  such  designation.^     XX,  250. 

[As  to  the  authority  to  order  general  courts  martial,  see 
Seventy  Second  Article  ;  President,  I.] 

See  record  ^  l,c,  3,uote. 


OEDER,  III— OF  PROMULGATION. 

1.  Where  a  general  court  martial  has  had  two  i)residents,  it 
is  immaterial  whether  the  first  or  the  second  is  mentioned  in 
describing  and  identifying  the  court  in  the  caption  of  the 
order  promulgating  its  proceedings.  It  is  not  indeed  neces- 
sary to  indicate  the  president  at  all.  XIII,  324.  Xor  is  it 
necessary  that  such  an  order  should  set  forth  the  specifica- 
tions to  the  charges ;  nor — though  this  is  usual,  where  the 
business  of  the  court  is  completed — that  it  should  formally 
dissolve  the  court.  Ill,  84.  An  order  of  promulgation, 
indeed,  is  a  mere  form^  convenient  and  habitual  as  a  means 
of  communicating  the  proceedings  or  tlieir  result  to  the  army, 
and  of  making  a  summary  memorandum  of  the  same,  but  not 
necessary  to  the  validity  of  i)roceedings  or  sentence.  Though 
no  such  order  is  issued  in  a  case,  the  proceedings  or  sentence 
in  the  same  will  be  formally  comx)lete  and  fully  operative,  if 
but  the  oificial  action  thereon  of  the  reviewing  authority  be 
duly  endorsed  upon  or  appended  to  the  record.  XXXII,  102. 
[See  Record  §  1,  Ic] 

2.  The  insertion,  in  an  order  of  publication,  of  the  proceed- 
ings had  tipon  a  re-assembling  of  the  court  for  a  revision  of 
its  findings  or  sentence,  though  at  one  time  occasionally 
resorted  to,  is  now  most  unusual.  Such  an  addition  can 
hardly  be  jiertinent  except  where  it  is  designed  as  a  basis 
for  special  comments,  on  the  part  of  the  reviewing  officer, 

^See  G.  O.  106,  Army  of  the  Potomac,  1862,  where  the  pro- 
ceedings of  a  court  martial  in  a  case  of  a  private  soldier  were 
disai^proved  as  without  jurisdiction,  because  the  convening 
order  had  authorized  the  court  to  try  the  cases  only  of  such 
officers  as  might  be  brought  before  it. 


ORDNANCE  DEPAI^TMENT.  355 

upon  tlie  action  of  the  court  in  connection  with  the  matter 
of  the  revision.     X,  120. 

3.  Where  certain  i^articulars  usually  deemed  foreign  to 
such  a  publication — such  as  special  pleas,  objections  to  testi- 
mony, &c. — were  inserted  in  an  order  of  promulgation,  held 
that  the  same,  though  purporting  to  be  extracts  from  the 
record,  were  not  competent  evidence  as  such,  and,  if  objected 
to,  could  not  properly  be  admitted  in  evidence  upon  the  trial 
of  a  case  involving  the  same  questions.    XII,  268. 

ORDNANCE  DEPARTMENT. 

It  is  required,  in  general  and  comprehensive  terms  by  Sec. 
1167,  Eev.  Sts.,  that  all  officers^  persons,  &c.,  who  may  be 
entrusted  with  any  ordnance  stores  or  supplies,  shall  make 
certain  regular  returns  to  the  Chief  of  Ordnance  of  such 
proi)erty  in  their  possession  or  charge,  according  to  certain 
forms  and  regulations  to  be  prescribed  by  that  officer  with 
the  approval  of  the  Secretary  of  War.  The  Act  of  March  3, 
1879,  c.  183,  authorizes  and  directs  the  Secretary  of  War,  at 
the  request  of  the  head  of  any  department,  to  issue  arms  and 
ammunition,  when  required  for  the  protection  of  the  public 
money  and  property, — "  to  be  delivered  to  any  officer"  of  such 
department  as  may  be  designated  by  the  head  of  the  same, 
and  to  be  accounted  for  to  the  Secretary  of  War.  Held  that 
the  provision  of  Sec.  1167  might  properly  be  regarded  as 
api)lying  to  the  class  of  officers  indicated  in  this  Act,  who 
therefore  would  x3roi)erly  be  required  to  furnish  the  returns 
prescribed  by  that  section.    XLII,  210. 

See  eighty  FIRST  ARTICLE  $  1. 
COLLEGE  OR  UNIVERSITY  $  3. 
CONTRACT  ^  15. 
SALE,  &c.,  OF  ARMS,  &c.,  TO  SOLDIERS. 


356  PAEDON. 


R 


PARDON. 

1.  The  President  is  empowered,  by  Art.  II,  Sec.  2,  §  1,  of 
the  Constitution  "  to  grant  pardons  for  offences  against  the 
United  States  "j  and  a  pardon,  like  a  deed,  must,  in  order 
to  take  effect,  be  delivered  to  and  accepted  by  the  party  to 
whom  it  is  granted.^  XIV,  558;  XV,  486,  654;  XIX,  73. 
Thus  there  can  be  no  pardon  of  a  deceased  officer  or  soldier; 
and  that  the  pardon  is  asked  by  the  party's  widow  or  heir, 
who  is  to  be  pecuniarily  benefited  thereby,  cannot  affect  the 
principle.  XXI,  564  ;  XXII,  291.  So  where,  in  a  case  of  an 
officer  who  had  died  while  under  a  sentence  of  suspension 
from  rank,  a  pardon  was  asked,  for  the  purpose  of  having 
the  stigma  removed  from  his  record  in  the  service,  lield  that 
the  case  was  not  one  in  which  the  iiardoning  power  could  be 
exercised.    VIII,  138. 

2.  It  is  the  effect  of  Sbfullpardouj  (otherwise  of  a  mere  re- 
mission of  the  imnishment — see  Eemission,)  to  remove  all 
penal  consequences,  (except  of  course  executed  penalties — 
see  §  4  infra.,)  and  all  disabilities,  attached  by  U.  S.  statute, 
(or  army  regulation,)  to  the  offence,  or  to  the  conviction  or 
sentence.^  Thus  the  pardon  of  a  convicted  deserter  will 
relieve  him  from  the  loss  of  the  rights  of  citizenshix)  attached 
by  the  Act  of  March  3,  1865,  (Sees.  1096,  1998,  Eev.  Sts.,)  to 
a  conviction  of  desertion.^     XXXI,  183.     But  a  pardon  by 

^  United  States  v.  Wilson,  7  Peters,  150 ;  In  matter  of  De 
Puy,  3  Benedict,  307  ;  VI  Opins.  of  Attys.  Gen.  403. 

2  XII  Opins.  of  Attys.  Gen.  81 ;  Ex  parte  Garland,  4  Wal- 
lace, 380. 

3  VIII  Opins.  of  Attys.  Gen.  284;  IX  Id.  478;  XIV  Id. 
124.  And  see  People  v.  Bowen,  43  Cal.  439.  That  this  dis- 
ability can  attach  only  ui)on  a  conviction,  see  Deserter  § 
8,  and  authorities  cited  in  note. 


PARDON.  357 

the  President  will  be  ineifectnal  of  course  to  remove  a  dis- 
qualification incurred  by  the  offender  under  a  State  statute.^ 
XXIX,  251 ;  XLI,  4G5. 

3.  Held  that  a  pardon  extended  to  an  enemy  for  his  offence 
or  offences  as  such,  committed  during  the  war,  did  not  entitle 
him  to  be  paid  rent  for  the  occupation  of  his  real  estate  by 
the  U.  S.  military  authorities  while  occupying  by  the  right  of 
conquest  the  region  of  country  in  w^hich  such  estate  w^as  sit- 
uated.    XXII,  5,  IG. 

4.  A  pardon  cannot  reach  or  remit  a  fully  executed  sentence, 
though  the  same  may  have  been  unjustly  imposed.  II,  330  ; 
VIII,  149, 228  ;  XXXVI,  G31,  (and  passim.)  A  pardon  can- 
not of  course  undo  a  corporal  punishment  fully  inflicted;^ 
nor  can  it  avail  to  restore  to  the  army' an  officer  or  soldier 
legally  separated  therefrom  and  made  a  civilian  by  a  duly 
api)roved  sentence  of  dismissa'l,^^  (see  Dismissal,  I  §  5,)  or  by 
a  dishonorable  discharge.  XII,  427  j  XIV,  5G8  j  XX,  302  ; 
XLI,  4G5.  Xor  can  it  restore  a  fine  paid,  (XVI,  305  ;  XXXV, 
471,)  or  pay  forfeited,  (XX,  90  ;  XXVIII,  5G7  ;  XXXV,  G7,) 
when  the  amount  of  the  same  has  once  gone  beyond  the  con- 
trol of  the  Executive  and  been  covered  into  the  U.  S.  trea- 
sury and  become  public  funds,^  whatever  may  have  been  the 
merits  of  the  case.  XXXVI,  192 ;  XXXVII,  445.  Other- 
wise, however,  where  the  money  still  remains  in  the  hands  of 
a  military  disbursing  ofiicer  or  other  intermediate  ofiicial.^ 
XVI,  G7G  5  XXI,  345.  Where,  however,  any  portion  of  a 
punishment  remains  unexecuted^  that  portion  may  be  remitted 

^VII  Opins.  of  Attys.  Gen.  7G0. 

2  See  VIII  Opins.  of  Attys.  Gen.  284. 

3  XII  Opins.  548  ;  Ex  parte  Garland,  4  Wallace,  381. 

*II  Opins.  of  Attys.  Gen.  330;  XVI  Id.—,  (Opinion  of 
April  29,  1878.)  This,  because  the  same  Constitution  which 
conveys  the  pardoning  power  contains  a  provision  ''  of  equal 
efficiency,"  (Art.  I,  Sec.  9  §  G,)  to  the  effect  that  money  in 
the  ijublic  treasury  shall  not  be  withdrawn  except  by  an  ap- 
propriation by  Act  of  Congress.  VIII  Id.  281.  Compare,  in 
this  connection,  Knote  v.  United  States,  5  Otto,  149,  where  it 
was  held  that  an  executive  pardon  would  not  entitle  a  party 
to  the  proceeds  of  certain  personal  effects,  confiscated  and 
sold  by  the  United  States  as  the  property  of  an  enemy,  after 
such  proceeds  had  been  duly  paid  into  the  Treasuiy. 

'  XiV  Opins.  of  Attys.  Gen.  GOl. 


358  PARDON. 

by  the  pardoning  power.^  II,  29,  (and  passim.)  Congress 
alone  can  restore  pay  fully  forfeited  to  the  United  States,  or 
otherwise  pecuniarily  indemnify  an  of&cer  or  soldier  for  the 
consequences  of  a  legally  executed  sentence.  XXX VIII, 
326,  (and  passim.) 

5.  It  is  the  effect  of  the  exercise  of  the  pardoning  power 
by  the  President  to  relieve  the  party  from  all  punishment  re- 
maining to  be  suffer^Ml.  Where,  therefore,  he  remits  the 
unexecuted  portion  of  a  term  of  imprisonment,  an  additional 
penalty,  which,  by  the  express  terms  of  the  sentence,  was  to 
be  incurred  at  the  end  of  the  adjudged  term,  as  a  dishonor- 
able discharge  from  the  service,  cannot  be  enforced.  The 
pardon  having  intervened,  the  sentence  ceases  to  have  any 
effect  whatever  in  law,  and  the  soldier — the  remainder  of  his 
service  being  regular — must  be  honorably  discharged.  VIII, 
669;  X,  286;  XX,  460. 

6.  The  pardoning  power  extends  to  continuing  punishments, 
or  punishments  which  are  never  fully  executed, — remitting, 
in  each  case  the  punishment  from  and  after  the  taking  effect 
of  the  i)ardon.  Of  this  class  is  the  i)unishment  of  disqualifica- 
tion to  hold  military  or  public  office,  as  also  that  of  the  losing 
of  or  reduction  in  ''  files,"  (or  relative  rank,)  in  the  list  of  offi- 
cers of  the  offender's  grade :  these  being  continuing  i)unish- 
ments,  may  be  put  an  end  to  at  any  time  by  a  remission  by 
the  pardoning  power.^    XXX,  262  ;*^XXXI,  24;  XLI,  158. 

7.  While  to  restore  to  or  place  u^Don  duty  an  officer  or  sol- 
dier, when  under  arrest  or  charges  on  account  of  an  alleged 
offence,  would  not  i^robably  in  this  country,  to  the  same  extent 
as  in  England,^  be  regarded  as  operating  as  a  condonation  of 
the  offence,  the  promotion  of  an  officer  while  under  arrest  on 
charges,  has  been  viewed  as  a  constructive  pardon  of  the 
offence  or  offences  on  account  of  which  he  has  been  arrested.* 
'Bntlield  that  such  a  promotion  could  not  operate  as  a  pardon 

*  And  the  Executive,  in  the  exercise  of  the  pardoning 
power,  ^'  may  pardon  or  remit  a  i)ortion  of  the  sentence  at 
one  time  and  a  different  portion  at  another."  Ill  Opins.  of 
Attvs.  Gen.  418. 

-  See  XII  Opins.  of  Attvs.  Gen.  547. 

^  See  Clodc,  Mil.  Forces  of  the  Crown,  vol.  1,  p.  173;  Pren- 
dergast,  244-5,  in  connection  with  the  cases  cited  of  Sir 
Walter  Ealeigh,  Lord  Lucan,  Capt.  Achisou,  &c. 

'  See  VIII  Opins.  of  Attys.  Gen.  237. 


PARDON.  359 

of  other  offences  committed  by  liim,  of  the  commission  of 
whicli  no  knowledge  was  bad  by  the  Executive  at  the  date 
of  the  promotion.     XXX Y,  G49. 

8.  While  ordering  or  authorizing  an  ofl&cer  or  soldier,  when 
under  sentence,  to  exercise  a  command  or  perform  any  other 
duty  inconsistent  with  the  continued  execution  of  his  sen- 
tence, has  been  viewed  as  a  constructive  pardon,^  JieJd  that 
to  allow  an  officer,  while  under  a  sentence  of  suspension  from 
rank,  to  perform  certain  slight  duties  in  closing  his  accounts 
with  the  United  States,  could  not  be  regarded  as  having  any 
such  effect.    XXXVII,  190.    [See  Suspension  §  11.] 

9.  It  is  settled  that  a  pardon  may  be  conditional — may  be 
granted  upon  a  condition  i^recedent  or  subsequent.-  Thus, 
where  the  President,  by  his  proclamation  of  ^March  11,  18G5, 
granted  a  pardon  to  all  deserters  "  on  condition  that"  they 
duly  returned,  (within  a  certain  time  stated,)  to  their  regi- 
ments, &c.,  and  served  the  remainder  of  their  original  terms 
and,  in  addition,  a  period  equal  to  the  time  lost  by  desertion, 
— Iield  that  a  soldier  who  duly  returned  under  this  proclama- 
tion, but  after  remaining  with  his  regiment  a  i)ortion  of  the 
period  indicated,  abandoned  the  service  and  went  to  his 
home,  was  liable,  (the  legal  period  of  limitation  fixed  by  the 
103d  Article  of  War  not  having  expired,)  to  be  brought  to 
trial  for  his  original  desertion  ;  the  condition  subsequent  upon 
which  his  pardon  for  the  same  had  been  extended  not  having 
been  performed.    X,  549. 

10.  In  certain  cases  of  military  offenders  convicted  of  lar- 
ceny of  i)ublic  property  or  conversion  of  i)ublic  funds,  (or  who 
had  escaped  from  militarj^  custody  while  under  charges  for 
such  offences,)  and  applying  for  pardon,  advised  that,  even  if 
otherwise  thought  worthy  of  x)ardon,  no  pardon  should  be 
extended  to  them  except  upon  the  condition  precedent  of  their 
making  good  the  funds  appropriated,  or  the  property  stolen 
or  its  value.     I,  'Sm  5  XIX,  132  ;  XXYI,  CIS. 

11.  The  i^ardon  or  remission  of  the  unexpired  punishments 
of  soldiers,  where  lavored  by  the  Judge  Advocate  General, 
has  been  recommended  on  grounds  of  which  the  principal 
were  the  following: — That  the  soldier  was  enlisted  under 

^  See  VI  Opins.  of  Attys.  Gen.  714. 

^  Ex  parte  Wells,  18  Iloward,  307;  Commonwealth  i\  Hag- 
garty,  4  Brewst.  3«*C;  YI  Opins.  of  xUtys.  Gen.  405. 


3G0  PARDON. 

false  representations  as  to  the  kind  of  service  which  would 
be  required  of  him,  made  by  the  recruiting  officer  in  disregard 
of  par.  92G,  Army  Eegulations;  That  he  enlisted  as  a  mere 
recruit,  did  not  have  the  Articles  of  War  read  to  him,  and 
had  no  proper  comprehension  of  the  gravity  of  his  offence ; 
That  he  did  not  comx)rehend  his  military  obligations  on 
account  of  an  imi)erfect  knowledge  of  the  Eiiglish  language; 
That  his  offence  was  wholly  or  in  part  induced  bj'  harsh  or 
injudicious  treatment  by  a  military  superior;  That  excess- 
ive or  unreasonable  duty  had  been  required  of  him,  or  that 
he  had  been  put  on  duty,  (as  a  guard  or  sentinel,  for  example,) 
when  unfit  for  the  same  on  account  of  illness  or  i)artial  intox- 
ication ;  That  his  offence  was  committed  under  a  provocation, 
or  was  accompanied  by  circumstances  of  extenuation,  to 
which  the  court  had  not  given  due  weight ;  That  prior  to 
his  trial  and  sentence  he  had  been  adequately  disciplined  by 
his  commander;  That  his  confinement  had  so  seriously  im- 
paired his  health  that  if  continued  it  would  endanger  his  life ; 
That  an  unreasonable  time  was  allowed  to  elapse  between  his 
arrest  and  trial,  or  after  trial  and  before  the  approval  and 
promulgation  of  the  sentence.  These,  and  other,  grounds 
have  been  taken  into  consideration,  sometimes  alone,  and 
sometimes  in  combination  or  in  coimection  with  such  further 
favorable  circumstances  as  voluntary  return  in  case  of  deser- 
tion, i^revious  good  character,  good  conduct  under  sentence, 
«&c.  In  cases  of  officers^  the  principal  grounds  for  recommend- 
ing pardon  or  remission  have  been — a  previous  good  record 
for  efficiency  in  the  service,  especially  in  time  of  war,  a  high 
personal  character  or  reputation,  and  an  api^arent  absence  of 
a  fraudulent  or  criminal  intent  in  the  offence  as  committed. 
IX,  245,  595;  XIII,  09;  XXVI,  540;  XXYII,  392,  505; 
XXVIII,  340;  XXXII,  G75;  XXXVII,  572,  (andiMs.sim.) 

12.  In  cases  in  which  military  offenders — such  as  deserters 
from  the  army  remaining  at  large,  or  officers  or  soldiers  who 
have  escaped  from  military  custody  while  in  arrest  or  under 
sentence — have  applied  from  their  i)laces  of  refuge  for  execu- 
tive pardons,  it  has  almost  invariably  been  advised  by  the 
Judge  Advocate  General  that  the  application  be  not  enter- 
tained till  the  fugitive  from  justice  should  return  and  surren- 
der himself  to  the  military  authorities  to  stand  his  trial  or 
abide  by  his  sentence.     XVII,  204;  XIX,  132,  090;  XXII, 


PAY  ACCOUNT.  361 

285;  XXIII,  309;  XXVI,  048;  XXXIV,  661;  XXXV,  551; 
XXXVIII,  607,  652;  XXXIX,  324,  326;  XLIII,  171. 

13.  In  cases  of  deserters  from  the  army  and  from  the  draft, 
who,  during  the  late  war,  when  men  of  patriotism  and  honor 
were  offering  their  lives  in  the  service  of  their  country,  took 
refuge  in  Canada, — shirking  a  grave  jmblic  duty  at  a  critical 
period  of  national  peril, — and  remained  there  till  the  close  of 
the  war,  when,  in  the  prospect  of  returning  peace,  they  ad- 
dressed to  the  Executive  applications  for  i^ardon  and  restora- 
tion to  the  rights  of  citizenshii)  forfeited  by  their  crime — 
advised  J  invariably,  that  such  applications  be  denied.  XVII, 
208,  258,  263;  XIX,  690;  XX,  44;  XXXIV,  669. 

14.  A  x^arty  who  has  been  pardoned  by  the  President  for  a 
political  offence,  or  has  taken  advantage  of  a  proclamation  of 
amnesty,  (such  as  that  of  May  29th  1865,  or  Dec.  25th  1868,)  is 
not  thereby  relieved  from  amenability  to  trial  and  punishment 
for  a  crime,  not  of  a  political  character,  committed  by  him, 
or  from  the  legal  consequences  of  the  commission  of  such  a 
crime.    XXVIII,  394;  XXIX,  35. 

See  one  HUNDRED  AND  TWELFTH  ARTICLE. 


PAY  ACCOUNT. 

An  officer's  "pay  account"  is  not  commercial  paper,  but,  in 
its  legal  aspect,  a  mere  receipt.^  So  held  that  a  bona  fide 
assignee  of  an  officer's  pay  account  for  a  certain  month,  who, 
on  receiving  payment  thereon  from  a  paymaster,  delivered  to 
the  latter  the  account  with  his  name  written  on  the  back  of 
the  same,  did  not  thereby  incur  the  obligation  of  an  endorser^ 
or  render  himself  liable  as  such  for  the  amount  to  the  pay- 
master, on  its  being  ascertained  that  the  officer  had  already 
himself  drawn  his  paj'  for  that  month,  and  that  a  double  pay- 
ment had  thus  been  made.    XLIII,  68. 

'  Xote  in  this  connection  the  oinnion  of  the  Attornev  Gen- 
eral, of  Oct.  23,  1878,  (XVI  Opins.  — ,)  to  the  effect  that  an 
approved  account  or  voucher  issued  to  a  contractor  for  an 
amount  due  him  under  his  contract  is  "not  in  any  jnoper 
sense  negotiable  paper." 


362  PAT  AND    ALLOWANCES. 


PAY  AND  ALLOWANCES. 

1.  Pay  is  the  monthly  pecuniary  compensation  of  officers 
and  soldiers  of  the  army/  as  fixed  by  Sees.  1261,  1280,  &c., 
Eev.  Sts.  It  is  quite  distinct  from  "  allowances.''^  A  sentence 
forfeiting  pay  does  not  affect  allowances  or  vice  versa.  II, 
193;  VIII,  578;  X,  565;  XXX,  282;  XXXII,  41.  [See,  in 
this  connection.  Forfeiture,  II  §  3,  4.] 

2.  The  right  to  pay  begins  and  ends  with  the  i^eriod  of  legal 
service.  Excei^t  by  special  authority  of  Congress,  an  officer 
or  soldier  cannot  be  j)aid  for  military  service  rendered  before 
appointment,  enlistment  or  muster  in.  XXXYIII,  120.  A 
soldier,  however,  who,  by  accident  or  through  some  exigency 
of  the  service,  is  held  to  service  for  a  brief  period  after  the 
date  on  which  his  term  of  enlistment  expired,  is  proi^erly 
entitled  to  be  paid  for  such  additional  period.  XXIX,  424; 
XXXVIII,  662.  So,  a  soldier,  detained  in  the  service,  after 
his  term  of  enlistment  has  expired,  by  reason  of  the  pendency 
of  proceedings  under  cLarges  preferred  against  him,  and  who, 
upon  trial,  is  acquitted,  or  sentenced  to  a  punishment  not  in- 
cluding forfeiture  of  pay,  and  is  thereupon  discharged, — is 
entitled  to  be  paid  up  to  the  date  of  discharge.  XXI,  448. 
An  officer  separated  from  the  service  by  a  dismissal,  droi^ping 
for  desertion,  "wholly"  retiring,  or  acceptance  of  resignation, 
is  entitled  to  be  paid  up  to  the  day  on  which  he  personally 
receives  official  notice  of  the  order  or  act  thus  detaching  him 
from  the  army  and  making  him  a  civilian.  XXVIII,  423, 
426;  XXX,  549.  [See  Order,  I  §  3.]  An  officer  or  soldier 
cannot  be  dismissed,  discharged,  or  mustered  out  as  of  a  prior 
date,  with  the  effect  of  depriving  him  of  pay  accrued  between 
that  date  and  tlie  date  of  the  actual  discharge,  &c.^  XVI, 
406;  XXII,  506.     [See  Dismissal,  II  §  2.] 

' ''  It  is  the  intention  of  the  law,"  (see  Sec.  1189,  Eev.  Sts.,) 
"  that  the  pay  of  the  army  sliould  not  be  in  arrears  more  than 
two  months."  Opinion  of  the  Attorney  General  of  March  21, 
1877,  (XV  Opins. .) 

^See  X  Oi)ins.  of  Attvs.  Gen.  285;  MiiXayhten,  27. 

=^  See  AUstjiedt  v.  United  States,  3  Ct.  CL  2S4.  On  the  other 
hand,  wliere  an  ofhcer,  who  has  been  dismissed,  is  restored, 
(by  the  authorit}^  of  Congress,)  to  office  with  the  raidv  which 


PAY  A^B  ALLOWANCES.  363 

3.  While  lie  remains  iu  the  military  establishment,  an  offi- 
cer or  soldier,  whether  or  not  actually  performing  military 
service,  can  be  deprived  of  his  legal  pay,  only  through  a  duly 
adjudged  and  approved  sentence  of  court  martial,  or  by  the 
operation  of  law  under  some  express  statutory  enactment  or 
army  regulation.'  The  fact  that  an  officer  or  soklier  is  under 
charges,  in  arrest,  or  awaiting  sentence,  cannot,  (except  in  so 
far  as  his  case  may  be  within  the  application  of  x^ars.  1357- 
1350,  Army  Eegulations,  presently  to  be  considered,)  afi'ect 
in  any  manner  his  right  to  the  regular  pay  of  his  rank.  VIII, 
478;  XII,  230.     [See  Arrest,  I  §  8.] 

4.  [N'or  does  it  afi'ect  this  right  that  the  officer  or  soldier  has 
been  arrested  by  or  delivered  to  the  civil  authorities  for  trial 
for  a  capital,  or  other,  crime.  While  the  criminal  proceeding 
is  ijending,  whether  he  remains  iu  legal  custody  or  is  ad- 
mitted to  bail,  his  right  to  his  pay  is  as  perfect  as  when  reg- 
ularly on  military  duty.  XXI,  288,  295 ;  XXXIII,  315.  [See 
Arrest,  II  §  3.] 

5.  A  sentence  expressly  forfeiting  all  pay  due  a  soldier  ap- 
j)lies  only  to  pay  due  him  under  his  pending  contract.  It  will 
not  affect  pay  which  may  be  due  for  service  rendered  under 
a  previous  enlistment  and  not  yet  settled.  XIY,  371 ;  XLII, 
73. 

6.  A  dismissal  of  an  officer  by  order  of  the  President  does 
not  involve  a  deprivation  of  any  part  of  the  pay  due  him,  and 
if  the  order  is  so  expressed  as  to  dismiss  him  "  without  pay 
or  allowances,"  or  in  terms  to  that  effect,  it  is,  as  to  this  por- 
tion, unauthorized  and  inoperative.  X,  21G ;  XLII,  73,  470. 
[See  Dismissal,  II  §  2.]  So  where  a  legal  muster  into  serv- 
ice of  a  volunteer  officer  was  r evolved  by  order,  after  an  in- 
terval of  service  rendered,  with  the  effect,. (given  to  the  or- 
der,) of  depriving  him  of  pay  for  such  service,  held  that  the 
so-called  revocation  was  unauthorized  and  inoperative.    A 

he  had  when  dismissed,  or  other  I'ank  of  a  date  prior  to  the 
restoration,  he  is  not  thereby  entitled  to  back  pay.  In  such 
cases,  in  the  absence  of  any  grant  of  pay  in  the  statute,  ''the 
relation  back  is  for  rank  only,  not  pav."  IV  Opins.  of  Attys. 
Gen.  003;  V  Id.  101,  132;  IX  Id.  137^. 

*  See  to  tlie  same  efiect  the  opinion  of  the  Attorney  General 

of  November  1),  1870,  (XV  Opins. ,)  and,  on  the  general 

principle  th-Ai  pay  cannot  he  forfeited  by  implication^  see  For- 
feiture, II  §  2. 


364  PAY  AND  ALLOWANCES. 

legal  executive  act  cannot  he  tlins  nullified  to  the  prejudice 
of  a  vested  right.    XLII,  470. 

7.  An  officer  or  soldier  cannot  be  deprived  of  his  pay  by 
means  of  any  civil  process  of  attachment  or  levy  on  execu- 
tion. [See  Civil  Process  §  1.]  So  where  a  wife,  in  an  ac- 
tion of  divorce  against  her  husband,  a  captain  in  the  United 
States  service,  obtained  au  interlocutory  judgment  for  an 
allowance  pendente  lite — Jielcl^  that  there  was  no  precedent  or 
legal  ground  for  requiring  him  to  satisfy  the  amount  of  such 
judgment  out  of  his  pay.     VIII,  493. 

8.  By  operation  cf  law,  indeed,  under  certain  express  stat- 
utory provisions,  an  officer's  or  soldier's  pay  may  be  withheld 
altogether,  or  temporarily,  or  be  subjected  to  certain  charges 
and  thus  reduced.  Thus,  by  Sec.  12G5,  Eev.  Sts.,  an  officer 
absent  without  leave  forfeits  all  Ymj  during  the  period  of  his 
absence,  unless  the  same  be  excused  as  unavoidable.  By 
Sec.  12GG,  an  officer  dropped  from  the  rolls  for  an  unauthor- 
ized absence  of  three  months  is  required  to  '^  forfeit  all  pay 
due  or  to  become  due."  Sec.  17GG  prohibits  the  payment  of 
his  comi>ensation  to  any  jierson  while  he  continues  ''  in  ar- 
rears to  the  United  States."  Sees.  1303  and  1304  require  in 
effect  that  the  cost  of  damage  done  to  arms,  &c.,  and  the 
value  of  military  stores  found  deficient,  shall,  except  where 
the  loss  is  occasioned  by  no  personal  fault  of  the  party,  be 
charged  against  the  pay  of  the  officer  or  soldier  responsible 
for  the  damage  or  deficiency.    XLI,  15G. 

9.  So,  by  pars.  1357  and  1358,  Army  Eegulations,  ^  it  is 
directed  that  no  officer  or  soldier  shall  receive  pay  or  allow- 
ances for  any  time  duriiig  which  he  has  been  absent  without 
leave,  (unless  he  shall  furnish  to  his  commanding  officer  a 
satisl'actory  excuse  for  such  absence,)  and,  further,  that  a 
deserter  shall  forfeit  all  pay  and  allowances  due  him  at  the 
time  of  his  desertion.  These  forfeitures  are  incurred  by  oper- 
ation of  law,  ui)on  the  commission  of  the  offence,  independ- 
ently of  any  punishment  for  the  same  by  sentence  of  court- 
martial,  and  it  is  not  essential  to  their  taking  effect  that  the 
offence  should  have  been  found  by  a  military  court.  In  gen- 
eral, however,  they  cannot  safely  be  enforced  in  the  absence  of 


^  Par.  1357,  so  far  as  respects  officers,  must  be  regarded  as 
superseded  bv  Sec.  12G5,  Rev.  Sts.  Par.  1358  has  been 
shghtly  modified  by  G.  O.  SS,  War  Dept.,  1873. 


PAY  A^'D  ALLOWANCES.  365 

au  ascertainment  of  the  guilt  of  the  party  by  a  trial  and  con- 
yiction.  Onl3'  sucli  pay  is  affected  by  tliese  regulations  as  is 
expressly  specified  therein.  Thus  a  deserter  forfeits  both  pay 
due  at  the  time  of  his  ofience  and  pay  for  the  i)eriod  of  his 
unauthorized  absence,  so  that,  upon  his  apprehension  or  sur- 
render, nothing  whatever  is  due  him.  But  here  the  forfeit- 
ure by  operation  of  law  ends  ;  from  this  date  his  pay  begins 
to  run  anew ;  and  unless  his  sentence,  (in  the  case  of  his  trial 
and  conviction,)  includes  a  forfeiture  of  pay  due,  he  will  be 
entitled  to  his  pay,  (less  any  legal  stoppages  or  deductions,) 
from  such  date,  (which  is  considered  to  be  that  of  his  return 
to  service,)  to  the  date  of  his  discharge,  whether  this  be  a 
dishonorable  discharge  adjudged  by  the  sentence  and  exe- 
cuted forthwith,  or — the  sentence  not  imposing  such  i)unish- 
ment — an  honorable  discharge  given  him  in  the  usual  manner 
after  a  further  i^eriod  of  service.  Y,  386 ;  Till,  G50 ;  XXI, 
433 ;  XXIII,  160 ;  XXI Y,  26 ;  XXXIX,  360.  Par.  1350  indeed 
provides  that  this  pay  shall  not  be  rendered  to  him  prior  to 
trial,  but  it  does  not  affect  his  right  to  receive  it  when  the 
trial  is  completed,  and  it  is  found  not  to  be  forfeited  by  the 
sentence  of  the  court.     XXI,  433. 

An  officer  or  soldier  brought  to  trial  for  desertion  or  absence 
without  leave,  and  acquitted,  cannot,  of  course,  be  subjected 
to  an3^  of  these  forfeitures;  nor  can  one  who  has  been  con- 
victed but  whose  conviction  has  been  disapproved  by  the 
competent  reviewing  authority.  YIII,  510.  [An  acquittal 
of  desertion,  or  a  disapproval  of  a  conviction  of  desertion,  in- 
cludes of  course  an  acquittal,  or  a  legal  nullifying  of  the  con- 
viction, of  the  offence  of  absence  icitliout  leave  included  in 
the  desertion.  XXX YII,  500.  See  Fin'ding  §  8  ;  Review- 
ing Al  THOKITY  §  2.] 

So,  where  a  charge  of  desertion  against  a  soldier  was  re- 
moved in  Orders,  as  unfounded,  and  he  was  granted  an  hon- 
orable discharge,  held  that  the  forfeiture  prescribed  by  these 
regulations  could  not  be  enforced.     XXXIX,  413. 

10.  A  captain  having  been  mustered  out  of  the  service,  as 
a  supernumerarj-,  with  one  year's  extra  pay  and  allowances, 
according  to  the  provisions  of  sec.  12  of  the  Act  of  July  15, 
1870,  was,  (after  more  than  two  years,)  reappointed  as  a  sec- 
ond lieutenant,  and  thereupon  required  to  submit  to  a  stop- 
page against  his  pay,  as  such  lieutenant,  of  the  said  extra 


3(}6  PAY  AND  ALLOWANCES. 

pay.  Held,  (March,  1873,)  that  this  requirement  was  unau- 
thorizecl  in  law.  The  allowance  granted  by  the  Act  was  a 
provision  made  for  the  officer  in  consideration  of  his  abrupt 
and  compulsory  separation  from  the  service  ui)on  the  reduc- 
tion of  the  army,  and,  once  paid,  could  not  be  reclaimed. 
Moreover  his  legal  status  under  his  new  appointment  was 
wholly  independent  of  that  occupied  under  his  previous  com- 
mission, and,  in  the  absence  of  any  legislation  of  Congress 
attaching  such  a  condition  to  the  holding  by  him  of  the  new 
office,  the  Executive  could  have  no  more  authority  to  impose 
any  than  if  he  had  never  previously  been  connected  with  the 
army.     XLII,  195. 

This  opinion  having  been  affirmed  by  a  subsequent  opinion 
of  the  Attorney  General  of  May  G,  1873,'  Congress  was  in- 
duced to  pass  an  Act — approved  March  3,  1875 — specifically 
providing  that  officers  mustered  out  as  supernumerary  should 
be  required,  upon  reappointment,  to  refund  the  one  year's 
pay  rendered  to  them  upon  the  muster  out.  Held,  under  this 
Act : — 1st,  that  it  applied  only  to  future  cases,  i.  e.  to  cases 
of  officers  who  should  be  so  re-appointed  after  its  date, 
(XXXYI,  355;)  2d,  that  it  applied  only  to  officers  mustered 
out  as  supernumerary  under  sec.  12  of  the  Act  of  1870,  and 
not  to  officers  honorably  discharged  upon  their  own  applica- 
tion by  the  authority  of  sec.  3  of  the  same,  these  latter  con- 
stituting a  separate  and  distinct  class  from  the  supernumerary 
officers.^    XXXVII,  050. 

11.  It  is  within  the  authority  of  Congress  to  reduce  the  pay 
or  allowances  of  officers  or  soldiers  at  any  time  during  their 
period  of  service  or  euhstment.  XXXII,  Gil,  G71.  [See  En- 
listment §  9.]  But  this  of  course  cannot  be  done  by  mili- 
tary or  executive  authority,-^  nor  can  a  soldier's  pay  be  tvith- 
held  except  in  pursuance  of  law  or  sentence.  Thus  held  that 
a  commanding  officer  was  not  authorized  to  withhold  a  sol- 
dier's pay  on  the  theory  that  if  paid  he  would  probably  de- 
sert.    XXX,  356. 

1 XIY  Opins.  230. 

^  See  the  confirmatory  opinion  of  the  Attorney  General,  of 
November  15,  187G,  (XV  Opins.  — .) 

^ ''  It  is  not  within  the  power  of  the  executive  department, 
or  any  branch  of  it,  to  reduce  the  pay  of  an  officer  of  the 
army."    United  States  v.  Williamson,  23  Wallace,  410. 


PAY   AND  ALLOWANCES.  367' 

12.  Eeld  (1871)  that  an  officer  ordered  to  liisliome  to  await 
orders  did  not  occupy  tlie  status  of  an  officer  on  leave  of  ab- 
sence, and  was  not  therefore  on  half  pay  durin<,^  the  period  of 
thus  awaiting  orders,  but  was  entitled  for  such  period  to  the 
full  pay  of  his  rank.^     XXXI,  509  j  XLII,  G8. 

13.  Held  that  Sec.  12C2,  Eev.  Sts.,  in  providing  for  a  certain  in- 
crease of  pay  for  officers  on  account  of  duration  of  service,  refer- 
red to  service  in  the  army,  and  that  a  i)eriod  during  which  a  cer- 
tain officer  had  served  in  the  navy  could  not  legally  be  included 
in  computing  his  years  of  service  under  this  statute.    XLI,  234. 

14.  Held  that  medical  cadets^ — in  view  of  the  terms  of  the 
statute,  (Act  of  Aug.  3,  18G1,  c.  42,  s.  5,)  authorizing  their 
employment  in  the  military  service, — though  not  private  sol- 
diers or  non  commissioned  officers,  were  clearly  enlisted  men ; 
and  therefore  that  officers  now  in  the  army  who  had  served 
as  medical  cadets  during  the  war  were  entitled,  under  the 
provisions  of  Sec.  7  of  the  Act  of  June  18,  1878,  to  compute 
the  period  of  such  service  in  computing  their  ^'service"  or 
^Hongevity  "  pay  under  Sec.  1262,  Rev.  Sts.^    XLIII,  196. 

15.  The  Act  of  July  17,  1862,  c.  200,  s.  1,  allowed  to  offi- 
cers ^assigned  to  dut^'  which  required  them  to  be  mounted' 
certain  increased  pay.  So,  Sec.  1261,  Eev.  Sts.,  entitles  cap- 
tains and  lieutenants,  when  "mounted"  to  receive  respect- 
ively two  hundred  and  one  hundred  dolhirs  per  annum  of  pay 
more  than  when  "  not  mounted."  Held  that,  to  entitle  officers 
to  the  increase  of  pay  under  these  statutes,  it  was  not,  and 
is  not,  essential  that  the  duties  reciuired  of  them  shoidd  make 
it  absolutely  necessary  that  they  should  be  mounted,  but  that 
it  was,  and  is,  sufficient  if  these  duties  were,  or  are,  such  as 

^  This  opinion  was  affirmed,  in  the  same  case,  (United  States 
t\  WiUiamson,)  by  the  Court  of  Claims,  in  1873,  (9  Ct.  CI., 
503,)  and  by  the  Supreme  Court,  in  the  next  year,  (23  Wal- 
lace 411.)  But  in  United  States  r.  Phisterer,  4  Otto,  210,  it 
was  held  that  an  officer,  ordered  to  his  home  to  await  orders, 
was  not  entitled  to  commutation  for  quarters  and  fuel,  his  home 
not  being  a  "station"  in  the  sense  of  par.  1080,  Army  Eegu- 
lations.  See  G.  O.  78,  Hdqrs.  of  Army,  1877,  issued  in  conse- 
quence of  this  decision.  But  see  the  recent  case  of  United 
States  V.  Lippitt,  10  Otto,  663,  where  the  officer  was  ordered 
to  the  headquarters  of  a  military  department^  to  await  orders. 

^  Held  otherwise  in  regard  to  officers  of  the  army  who  had 
been  cadets  of  the  Military  Academy,  such  cadets  not  being 
enlisted  men.  Opmion  of  the  Solicitor  General  of  Aug.  7, 
1878,  (XVI  Opins.  — .) 


368  PAY  AND  ALLOWANCES. 

are  usually  and  ai)propriately  performed  by  mounted  officers, 
and  sucli  as  can  not  be  performed  effectively  or  without  ma- 
terial embarrassment  and  inconvenience  to  the  service  ex- 
cept by  such  officers  ;^  and  further  that  the  certificate  of  the 
proper  commander  of  an  officer,  (as  of  the  Chief  Signal  Offi- 
cer in  a  case  of  an  officer  engaged  in  signal  duty,  or  of  the 
Sui>erintendent  at  West  Point  in  a  case  of  an  acting  quar- 
termaster stationed  at  that  post,)  that  the  duties  of  the  officer 
l>roperly  required,  (in  the  sense  above  indicated,)  that  he 
should  be  mounted,  would,  (the  Secretary  of  War  approv- 
ing,) be  sufficient  to  entitle  him  to  receive  the  additional  pay.^ 
XXVI,  078 ;  XXIX,  59.  Held  that  a  captain  or  lieutenant, 
detailed  as  a  i)rofessor  in  a  college  under  Sec.  1225,  was  not 
entitled  to  mounted  pay.    XXXIX,  475. 

16.  Sec.  1261,  Kev.  Sts.,  in  fixing  the  pay  of  officers,  pro- 
vides that  an  "acting  assistant  commissary ''  shall  be  paid 
''  one  hundred  dollars  a  year  in  addition  to  the  pay  of  his  rank." 
The  statute  does  not  prescribe  that  the  officer  thus  "acting" 
shall  have  any  particular  rank,  nor  is  there  any  such  an  office 
in  the  army  as  'assistant  commissar^-.'  Held  therefore,  that 
"acting  assistant  commissary,"  as  here  used,  was  a  name  for, 
or  description  of,  a  duty^  not  an  office  ;  that  a  captain  was  as 
legally  eligible  to  be  detailed  on  the  duty  of  an  acting  assist- 
ant commissary  as  was  a  lieutenant ;  and  therefore  that  a  cer- 
tain captain  who  had  been  thus  detailed  was  entitled  to  the 
additional  pay  specified  by  the  statute.     XLI,  217. 

17.  Held  that  the  additional  pay  upon  re-enlistment,  ac- 
corded to  soldiers  by  Sec.  1284,  Eev.  Sts.,  was  intended  as  a 
compensation  for  long  and  continued  military  service,  with- 
out reference  to  the  kind  of  service  or  the  corps  in  Avhich  it 
was  rendered;  and  therefore  that,  where  this  additional  pay 
had  once  l;egun  to  accrue  to  a  soldier  by  reason  of  his  having 
entered,  in  accordance  Avith  the  provisions  of  the  section, 
upon  a  second  term  of  five  years'  service  in  the  infantry,  his 

^Xote,  in  this  connection,  the  construction,  in  Griswold  v. 
Hepburn,  2  Duvall,  20,  of  the  provision  in  Art.  I,  Sec.  8  §  18, 
of  the  Constitution,  that  Congress  shall  have  the  power  "to 
make  all  laws  Avhich  shall  be  nceesmrjj,''^  &c.,  for  the  execution 
of  its  special  i)ovrers — as  meaning  not  indisx)ensable  but  ap- 
propriate and  conducive  to  the  purpose. 

^  See  the  recent  G.  O.  7,  Hdqrs.  of  Army,  1880,  as  to  officers 
entitled  to  mounted  pay. 


PAY  AND   ALLOWANCES.  3G9 

continued  riglit  to  the  same  was  not  interrupted  by  liis  being- 
discharged  from  the  infantry  and,  (on  the  next  day,)  enUsted 
in  the  ordnance  corps.     XLIF,  1^83. 

18.  Sec.  1305,  Eev.  Sts.,  provides  for  the  deposit  by  an  en- 
listed man  of  his  savings  Avith  a  paymaster,  to  be  paid  over 
to  him  upon  discharge.  Held  that  this  statute  provided  for 
voluntary  deposits  only ;  and  that  an  officer,  liowever  lauda- 
ble his  motive,  was  not  legally  authorized  in  thus  depositing, 
against  the  will  of  a  soldier,  certain  money  in  his  hands 
belonging  to  the  latter.     XXXIX,  471. 

19.  Pay,  after  it  has  been  delivered  to  an  officer  or  a  sol- 
dier, is  beyond  the  control  of  the  military  authorities.  Thus 
where,  uj)on  the  apprehension  of  a  soldier  as  a  deserter,  an 
amount  of  his  last  pay,  found  in  his  possession,  was,  as  a 
matter  of  discipline,  taken  from  him  and  retained  by  his  com- 
manding officer,  held  that  such  action  was  unauthorized  and 
illegal.  ^  XXXIX,  471. 

20.  The  remission  of  another  punishment  imposed  by  sen- 
tence uj)on  a  soldier  in  connection  with  forfeiture  of  paj^  w^iU 
not  in  general  aftect  the  forfeiture.  XXT,  43.  But  where  a 
soldier  was  sentenced  to  forfeit  all  pay  due  and  to  become 
due,  and  to  be  dishonorably  discharged  from  the  service,  and 
the  latter  i^unishment  was  remitted  by  the  reviewing  author- 
ity in  approving  the  sentence,  held  that  the  soldier  became 
entitled  to  receive  pay  accruing  after  this  action, — the  for- 
feiture of  "pay  to  become  due"  having  evidently  been  im- 
I)Osed  in  contemjilation  of  his  being  j)resentlj'  separated  from 
the  service  by  the  discharge,  and  therefore  not  i^roperly  to  be 
enforced  under  the  altogether  different  status  created  by  the 
remission.     XV,  2G0;  XVI,  533;  XIX,  G78. 

21.  It  is  provided  by  Sec.  1291,  Eev.  Sts.,  that  "no  assign- 
ment of  pay  by  a  non-commissioned  officer  or  private,  previous 
to  his  discharge,  shall  be  valid."  ^  But  held  that  this  statute 
did  not  preclude  a  soldier,  so  situated  as  to  be  unable  to  re- 
ceive his  ijay  in  person,  from  giving  an  order  to  another  i^er- 
son  to  receive  and  receipt  for  the  same /or  him^  and  therefore 

^  This  statute  does  not  aj^ply  to  officers^  who  are  therefore 
authorized  to  assign  their  pay  after  it  has  become  due,  (par. 
1349  of  the  Army  Eegulations  prohibiting  its  assignment 
hefbre  due.)  Opinion  of  the  Attorney  General  of  May  17, 
1877,  (XV  Opins.  — .) 
24  D 


370  PAY  AND  ALLOWANCES. 

tliat  a  soldier  in  tlie  custody  of  the  cis'il  authorities  under  a 
criminal  charge  might  legally  be  paid  the  amount  of  pay  due 
him  upon  an  order  given  by  him  for  the  same  to  the  attorney 
employed  to  defend  him.  XXXVIII,  315.  So  held  that  the 
pay  due  an  insane  officer  or  soldier  might  legally  be  rendered 
to  a  person  duly  appointed  as  his  guardian  under  the  State 
law.     XXXIII,  45. 

22.  Held  that  an  officer  on  the  active  list/  detailed  as  a  pro- 
fessor in  a  college  under  Sec.  1225,  Eev.  Sts.,  though  detailed 
at  his  own  request,  was  entitled  to  the  usual  allowances  of 
officers  on  duty,  viz.  the  allowance  for  commutation  of  quar- 
ters made  payable  by  Sec.  9  of  the  Act  of  June  18,  1878,  c. 
2G3,  ''  at  i:)laces  where  there  are  no  public  quarters,"  and  the 
right  to  i^urchase  fuel  on  the  terms  accorded  by  Sec.  8  of  the 
same  Act.2     XXYII,  662;  XXXI Y,  365;  XXXIX,  475. 

23.  Held  that,  while  engineer  officers  engaged  upon  civil 
works  were  entitled,  like  other  officers  on  duty,  to  the  allow- 
ances authorized  by  Sees.  8  and  9  of  the  Act  of  June  18, 1878, 
no  part  of  the  appropriations  speciallj'  made  for  such  works 
by  Congress  could,  in  the  absence  of  express  statutory  au- 
thority for  the  puri^ose,  be  devoted  to  the  purchase  of  fuel 
for  such  officers  or  to  the  payment  to  them  of  the  commuta- 
tion allowance  for  quarters.     XLI,  346. 

24.  Sec.  8  of  the  act  of  June  18,  1878,  authorizes  the  fur- 
nishing of  fuel  to  officers  at  a  certain  rate  ''  according  to  the 
regulations  now  in  existence."  ^  Held  that  an  officer,  while  ab- 
sent on  sick  leave,  was  not  entitled  to  the  benefit  of  this  pro- 
vision.   XLI,  382. 

25.  The  Act  of  June  18,  1878,  c.  263,  s.  8,  provides  that 
"fuel  maybe  furnished  to  the  officers  of  the  army  by  the 

^  See  the  opinion  of  the  Attorney  General  of  July  18,  1878, 
(published  in  G.  O.  52,  Hdqrs.  of  Army,  1878,)  that  retired 
officers  are  not  entitled  to  the  right  to  purchase  fuel  under 
the  Act  of  June  18,  1878. 

2  Compare  Long  v.  United  States,  8  Ct.  CI.  398. 

^  It  has  been  held  by  the  Attorney  General  that  the  words  in 
this  section — "  at  the  rate  of  three  dollars  per  cord  for  standard 
oak  wood,  or  at  an  equivalent  rate  for  other  kinds  of  fuel,  ac- 
according  to  the  regulations  now  in  existence,"  were  to  be  con- 
strued as  only  authorizing  the  quartermaster  department  to 
furnish  the  quantity  of  other  fuel  for  three  dolhirs  which,  by 
the  regulations,  is  made  the  equivalent  of  a  cord  of  standard 
oak  wood.     Opinion  of  July  18,  1878,  (XVI  Opins.  — ,) 


PAY  AND   ALLOWANCES.  371 

quartermaster's  department  for  the  actual  use  of  such  officers 
only,"  &c.  Helcl^  (Aug.  13,  1878,)  that  it  would  not  be  iu  con- 
travention of  this  statute  to  furnish  to  the  families  of  officers, 
temporarily  absent  by  authority,  though  not  on  formal  leave, 
from  their  stations,  the  allowance  of  fuel  to  which  they  were 
entitled,  (i.  e.  the  fuel  which  they  were  allowed  to  purchase  at 
a  reduced  rate  under  the  Act;) — articles  of  necessity  fur- 
nibhed  for  the  use  of  an  officer's  family  under  the  circum- 
stances being  in  contemplation  of  law  furnished  for  the  use  of 
the  officer  himself.     XXXIX,  638. 

26.  Held  that  the  term  of  description  in  sec.  0  of  the  xVct 
of  June  18,  1878, — ^^at  places  where  there  are  no  public  quar- 
ters," included  places  where  the  public  quarters  were  insuffi- 
cient for  all  the  officers  of  the  command ;  and  that  officers 
stationed  at  such  places,  to  whom,  on  account  of  the  insuffi- 
ciency of  the  existing  accommodations,  no  quarters  could  be 
furnished,  would  be  entitled  to  the  commutation  allowance.^ 
XXXIY,  341. 

27.  Reld  that  the  right  of  an  honorably  discharged  soldier 
to  the  '''  travel  pay,"  or  allowance  for  transportation  and  sub- 
sistence, while  i^roceeding  from  the  place  of  his  discharge 
to  the  place  of  his  enlistment,  as  accorded  by  Sec.  1290,  Eev. 
Sts.,  was  not  divested  by  a  sentence  of  court  martial  imposed 
upon  him  before  discharge  by  which  were  forfeited,  with  pay, 
his  ^'allowances  due  and  to  become  due";  this  term  referring 
to  his  regular  allowances  as  a  soldier,  and  not  including  the 
allowance  in  question  which  is  made  to  the  soldier  after  he 
has  become  a  civilian.     XXXVIII,  172. 

See  appointment  q  11. 
DISCHARGE,  II  ^  6. 
DISMISSAL,  I  ^  4. 
FORFEITURE,  IL 
ORDER,  I  ^>  3,  4. 
PAY  ACCOUNT. 
PAYMASTER. 
POST  TRADER  $  5 
PRISONER  OF  WAR  ^  9,  and  note. 
PROFESSOR  OF  THE  MILITAIU^  ACADEMY. 
RESIGNATION  $  2. 
RETIREMENT  $  8. 
STOPPAGE. 

^  See  opinion,  to  a  similar  effect,  of  the  Solicitor  General,  of 
August  7,  1878,  (XVI  Opins.  — .) 


372  PAYMASTER— PAYMENT   BY  MAIL. 


PAYMASTER. 

It  is  not  iincommou  for  paymasters  to  deliver  to  command- 
ing officers  of  companies  in  whom  tliey  liave  confidence  the 
amounts  of  pay  due  to  men  of  the  comi)any  mustered  for  pay 
with  itj  but  who  may  not  he  present  at  the  pay-table  at  the 
time  the  payment  is  made.  There  is,  however,  no  statute  or 
army  regulation  authorizing  x^aj^masters  to  make  pay  in  any 
manner  other  than  to  the  soldier  in  person  j  and  where  a  pay- 
master commits  to  his  officer  the  pay  of  a  soldier  without  the 
assent  of  the  latter,  he  acts  at  his  own  risk,  and  if  the  pay  is 
not  duly  rendered  to  the  soldier,  the  paymaster  becomes  re- 
sponsible for  the  same  to  the  government,  which  of  course 
remains  liable  to  the  soldier  until  he  is  paid  what  is  due  him. 
XXIY,  376. 

See  sixtieth  ARTICLE  §  9,  10,  11. 
DISBURSING  OFFICER. 
PAY  ACCOUNT. 
TRANSPORTATION  OF  PUBLIC  FUNDS. 


PAYMASTER'S  CLERK. 

A  paymaster's  clerk  is  a  civilian,  (see  Sec.  1190,  Eev.  Sts.,) 
and  no  part  of  the  army.  Unless  actually  serving  with  an 
army  in  the  field  in  time  of  war,  and  thus  within  the  class  of 
persons  indicated  by  the  63d  Article  of  War,  he  is  not  amen- 
able to  military  discipline  or  the  jurisdiction  of  a  court-mar- 
tial.^   Ill,  269.    [See  Sixty  Third  Article  §  2.] 

PAYMENT  BY  MAIL. 

In  the  absence  of  any  usage,  or  course  of  dealing  between 
the  parties,  or  special  direction  by  the  creditor  or  person  to 
whom  the  remittance  is  made,  authorizing  such  a  mode  of 
transmission,  the  sending  hy  mail  to  a  party,  of  money  due 

^  Paymasters'  clerks  in  the  Navy  occui)y  a  difi'erent  status. 
They  wear  a  uniform,  have  a  fixed  rank,  and  are  held  by  the 
U.  S.  courts  to  be  a  part  of  the  navy  and  amenable  at  all 
times  to  trial  by  naval  courts  martial.  See  Ux  parte  Eeed, 
10  Otto,  13;  In  re  Bogart,  2  Sawyer,  o96;  United  States  v. 
Bogart,  3  Benedict,  257. 


PENITENTIARY— PENSION.  373 

liira,  is  at  the  risk  of  tbe  party  remitting,  and,  if  the  money  is 
lost  in  transitu,  such  a  sending  does  not  amount  to  a  U^gal  pay- 
ment or  discharge  of  the  debt.^  So,  where  au  officer,  having  iu 
his  possession  certain  comi^any  funds,  due  and  i)ayable  to 
another  officer  stationed  at  another  post,  transmitted  the 
amount  in  a  communication  by  mail,  without  any  request  or 
authority  from  the  latter  so  to  forward  the  same ;  and  the  sum 
remitted,  or  a  part  of  it,  was  lost  en  route  ;  held  tliat  the  loss 
must  be  borne  by  the  officer  sending  the  money.  XXYI,  274. 
Similarly  held,  where  a  superior  officer  attempted  to  transmit 
to  an  inferior  officer  under  his  command,  without  any  request 
or  authority  from  him  so  to  transmit  the  same,  certain  pay  due 
the  latter,  in  the  form  of  a  check  i^ayable  to  bearer,  enclosed 
in  a  letter,  which  was  lost  or  stolen  in  transitu,    XXI,  112. 

PENITENTIARY. 
SEE  NINETY  SEVENTH  AETICLE. 

PENSION 

1.  By  Sec.  4693,  Eev.  Sts.  a  soldier  '^disabled  by  reason 
of  any  wound  or  injury  received,  «S:c.,  while  in  the  service  of 
the  United  States,  and  in  the  line  of  duty,"  is  entitled  to  a 
pension.  Where  a  soldier,  without  fault  of  his  own,  but  by 
reason  of  a  casualty  of  the  service,  received  a  disabling  injury, 
held  that  the  fact  that  he  was  at  the  time  undergoing  a  tem- 
porary confinement  under  sentence  of  a  regimental  court 
could  not  legally  be  allowed  to  prejudice  his  claim.  It  is  a 
l)art  of  a  soldier's  military  dut^^  to  submit  to  any  punishment 
duly  imijosed  ux)on  him,  and,  in  submitting  to  the  same  in 
compliance  with  a  military  order,  the  soldier  is  in  the  line  of 
his  duty.     XLI,  257. 

2.  In  the  absence  of  any  statutory  provision  on  the  subject, 
held  not  to  be  essential,  to  entitle  a  person  to  a  military  pen- 
sion, that  he  should  have  received  an  honorable  discharge  as 
a  soldier.  The  pension  is  granted  on  account  of  disabihty 
incurred  by  the  part}'  in  the  line  of  duty  while  in  the  military 

^  Gurney  v.  Howe,  9  Gray,  404  j  Boyd  v.  Reed,  6  Heisk. 
631 ;  Morton  v.  Morris,  31  Ga.  378 ;  Burr  v.  Sickles,  17  Ark. 
4285  Selnian  v.  Dun,  10  AYest.  L.  J.459j  2  Greenl.  Ev.  §  525^ 
1  Pars.  Contr.  132. 


374  PEONAGE — PERJURY. 

service,  wholly  irrespective  of  the  circumstances,  whether 
honorable  or  dishonorable,  under  which  he  may  subsequently 
have  become  separated  from  the  army.^    XLIII,  346. 

PEOHAGE. 

In  view  of  the  provision  of  the  Act  of  July  17, 1862,  c.  195, 
s.  10,  that  "no  person  in  the  military  service  shall  assume  to 
decide  upon  the  validity  of  the  claim  of  any  person  to  the 
service  or  labor  of  any  other  i^erson,  or  surrender  up  any  such 
person  to  the  claimant,  on  pain  of  being  dismissed  from  the 
service," — held  that  an  officer  of  the  army  stationed  in  New 
Mexico,  who  caused  to  be  delivered,  to  his  former  master 
there,  a  fugitive  peon,  was  liable  to  trial  by  court  martial  and, 
upon  conviction,  to  dismissal.^    XIX,  377. 

PERJURY. 

1.  False  swearing  by  a  witness  before  a  military  court  is 
not  perjury  at  common  law,  nor  according  to  any  Article  of 
War.^    But  though  perjury  is  not  made  a  si^ecific  offence  by 

^  This  view  has  since  been  ascertained  to  be  in  accordance 
with  the  practice  of  the  Office  of  the  Commissioner  of  Pensions. 

-  See  the  more  recent  enactment  of  March  2,  1867,  as  incor- 
porated in  the  Eevised  Statutes,  (Sees.  1090  and  1991,) 
abolishing  peonage  in  New  Mexico,  (and  elsewhere,)  and 
declaring  that  "every  person  in  the  military  or  civil  service 
in  the  Territory  of  New  Mexico  shall  aid  in  the  enibrcemeut" 
of  the  law  on  tlie  subject. 

^In  England,  indeed,  false  swearing  before  a  court  martial 
appears  to  be  regarded  as  being  indictable  as  i)eijury  at 
common  law.  See  Queen  v.  Heane,  4  B.  &  S.  947 ;  also  Clode, 
Military  Forces  of  the  Crown,  vol.  1,  pp.  169,  552-4. 

A  special  statutory  provision  making  a  false  oath  before  a 
naval  court-martial  indictable  as  perjury,  was  contained  in 
the  Articles  for  the  government  of  the  navy,  established  by 
the  Act  of  July  17,  1862,  c.  204,  and  appears  still  to  -subsist 
in  the  41st  of  the  present  Articles  and  Sec.  1023,  Kev.  Sts. 
There  is  no  statute  relating  specihcally  to  false  swearing  be- 
fore a  court  martial  of  the  army.  The  general  provision, 
however,  of  Sec.  5392,  Kev.  Sts.  providing  for  the  punishment 
of  i^erjury,  is  broad  enough  to  include  a  case  of  false  swearing 
as  to  "material  matter"  before  any  court  martial  equall}'  as 
before  a  civil  tribunal  of  the  United  States.  Thus  a  military 
person  guilty  of  making  a  false  inaterial  statement  under 
oath  as  a  witness  upon  a  military  trial,  would  be  amenable 


PL  FA.  375 

the  military  code,  false  swearing  by  an  officer  or  soldier  be- 
fore a  court  martial  is  ^'conduct  to  the  prejudice  of  good 
order  and  military  discipline,"  and  is  cognizable  and  punish- 
able as  such  under  the  general — G-Jd — Article.  And  a  charge 
of  ^'Peijury,"  in  connection  with  a  si)eciflcation  setting  forth 
a  false  swearing  upon  a  court  martial,  will  constitute  a  suffi- 
cient pleading  of  an  offence  under  this  Article.  XXII,  607  j 
XXX,  190.    [See  Sixty  Second  Article  §  8.] 

2.  False  swearing  before  a  court  martial  not  being  j)erjury 
at  common  law,  the  rules  as  to  the  character  and  amount  of 
the  evidence  necessary  to  sustain  an  indictment  for  i)eijur3', 
though  they  may  i^rofitably  be  referred  to,  need  not  govern 
the  proof  of  the  military  offence.  Such  offence  will  ordinarily 
be  sufficiently  established  by  the  written  record,  (or,  in  its 
absence,  by  secondary  i)roof,)  of  the  testimony  as  given, 
together  with  any  reliable  and  satisfactory  evidence  that  the 
same  was  knowingly  false.     XII,  631. 

^E  MILITARY  OFFENCE. 


PLEA. 

1,  It  is  a  general  rule  of  criminal  law  that  where  the  accused 
pleads  guilty,  no  tsstimony  on  the  merits  is  to  be  introduced. 
But,  on  military  trials,  the  court,  even  against  the  objection 
of  the  accused,  may,  in  its  discretion,  call  uiion  the  judge- 
advocate  to  offer  evidence,  or  approve  of  his  doing  so,  in  a 
case  where  such  evidence  is  deemed  to  be  essential  to  the 
due  administration  of  military  justice.^     An  accused  cannot 

not  only  to  a  military  charge  but  apparently  also  to  indict- 
ment in  the  U.  S.  District  Court. 

^The  principle  that,  in  cases  in  which  the  plea  is  guilty,  the 
court  should  take  testimony,  Avhere  necessary  to  the  com- 
prehending of  the  facts  and  the  doing  of  justice,  though 
ai)i)arently  in  a  measure  lost  sight  of  at  a  later  period,  was 
clearly  enunciated  in  early  General  Orders  of  the  AVar  De- 
partuient.  Thus,  in  G.  O'.  1^3  of  1830,  ]\raj.  Gen.  :Macomb, 
(commanding  the  Army,)  expresses  himself  as  follows: — "In 
every  case  in  which  a  i)nsoner  pleads  guilty,  it  is  tlie  duty  of 
the  court-martial,  liotwithstanding,  to  receive  and  to  report 
in  its  proceedings  such  evidence  as  may  afford  a  full  knowl- 
edge of  the  circumstances;  it  being  essential  that  the  facts  and 
particulars  sliould  be  known  to  those  whose  duty  it  is  to  report 
on  the  case,  or  who  have  discretion  in  carrying  the  sentence 
into  effect."    And  see  G.  O.  21,  of  1833,  to  a  similar  eff'ect. 


376  PLEA. 

be  allowed,  by  pleading  guilty,  to  shut  out  testimony  where 
the  iuterests  of  the  service  require  its  iutroduction.  XXIX, 
124.  But  in  all  cases  where  evidence  is  introduced  by  the 
prosecution  after  a  plea  of  guilty,  the  accused  should  of  course 
be  afforded  an  opportunity  to  offer  rebutting  evidence,  or 
evidence  as  to  (character,  should  he  desire  to  do  so.     XIII,  423. 

2.  While  it  cannot  properly  be  ordered  by  a  commander 
that  courts  martial  convened  by  him  shall  not  receive  pleas 
of  guilty,  or  shall  take  evidence  on  the  merits  notwithstand- 
ing pleas  of  guilty  are  interi)osed  by  the  accused,  it  is  yet 
proper,  and  in  general  desirable,  particularly  in  cases  of 
enlisted  men,  and  especially  where  the  specifications  do  not 
fully  set  forth  the  facts  of  the  case,  that  the  prosecution  should 
be  instructed  or  advised  to  introduce,  with  the  consent  of  the 
court,  evidence  of  the  circumstances  of  the  offence,  where  the 
plea  is  guilty  equally  as  where  it  is  not  guilty.  This  for  the 
reason  that  the  court  may  be  better  enabled  correctly  to 
appreciate  the  nature  of  the  offence  committed  and  thus  to 
estimate  the  measure  of  i>unishment  proper  to  be  awarded ; 
and  further  that  the  reviewing  authority  may  be  better  enabled 
to  comi)rehend  the  entire  case,  and  to  determine  whether  the 
sentence  shall  be  api)roved  or  disapproved,  (in  whole  or  in 
part.)  or  shall  be  mitigated  or,  (in  whole  or  in  i^art.)  remitted. 
[See  Court  Martial,  1  §  9.]  Where  indeed  the  sentence  is 
not  discretionary  with  the  Court,  the  former  reason  does  not 
apply?  though  in  such  case  the  evidence  may  be  desirable 
as  the  basis  for  a  recomynendation  by  the  members.  But 
where  the  sentence  is  mandatory,  the  latter  reason  api^lies 
with  the  greater  force,  since  the  mandator^^  j^unishments 
under  the  Articles  of  War  are  in  general  of  the  severest 
quality,  and  the  reviewing  officer  in  acting  upon  the  same  is 
called  upon  to  exercise  an  especially  grave  discretion.  In 
capital  cases  particularly^,  it  is  most  important  that  all  the 
facts  of  the  case — all  circumstances  of  extenuation  as  well  as 
of  aggravation— should  be  exhibited  in  evidence.  Ill,  047  j 
VI,  370. 

In  practice,  the  absence  of  evidence  to  illustrate  the  offence 
has  been  found  peculiarly  embarrassing  in  cases  of  deserters. 
In  a  majority  of  these  cases  in  Avhich  the  plea  is  ''guilty,"  the 
record  is  found  to  contain  no  testimony  whatever ;  and  a  full 
and  intelligent  comprehension  of  the  nature  of  the  offence — 


PLEA.  377 

wlietlier  desired  upon  tlie  original  review  of  tlie  proceedings 
or  upon  a  subsequent  application  for  remission  of  sentence- 
is  thus,  in  many  instances,  not  attainable/    XXVII,  180. 

3.  It  not  unfrequently  bappens  uj^on  trials  of  enlisted  men 
that  the  accused,  in  pleading  guilty,  will  i)roceed  to  make  a 
statement^  (verbal  or  written,)  to  tbe  court,  which  is  in  fact 
inconsistent  with  the  plea.  Thus,  in  a  case  where  the  accused, 
being  evidently  ignorant  of  the  forms  of  law,  pleaded  guilty 
to  an  artificially  worded  charge  and  specification,  and  imme- 
diately thereupon  made  a  verbal  statement  to  the  court  of 
the  particulars  of  his  conduct,  setting  forth  facts  quite  incon- 
gruous with  his  i)lea ;  and  no  evidence  whatever  was  intro- 
duced in  the  case — held  that  the  statement,  rather  than  the 
plea,  should  be  regarded  as  the  intelligent  act  of  the  accused, 
and  that,  ui)on  considering  both  together,  the  accused  should 
not  be  deemed  to  have  confessed  his  guilt  of  the  specific 
charge.  YIII,  274.  In  such  a  case  the  court  will  properly 
counsel  the  accused  to  plead  not  guilty,  and  this  plea  being 
entered,  will  x)roceed  to  a  trial  and  investigation  of  the  merits. 
YI,  357,  370.  And  where,  with  a  plea  of  guilty,  there  was 
offered  by  the  accused  a  written  statement  setting  forth 
material  circumstances  of  extenuation^  and  the  court  without 
taking  any  testimony  whatever,  or  apparently  regarding  the 
statement,  proceeded  to  conviction  and  sentence;  advised — 
the  case  being  one  in  which  the  sentence  had  been  partly 
executed — that  this  action  constituted  a  reasonable  ground 
for  a  remission  of  a  portion  of  the  punishment.  XX,  120, 127, 
177;  XV,  142;  XXIX,  421;  XXX,  33;  XXXII,  052; 
XXXIII,  42. 

4.  Wherever,  in  connection  with  the  plea  of  guilty,  a  state- 
ment or  confession,  whether  verbal  or  written,  is  interposed 
by  the  accused,  both  i^lea  and  statement  should  be  considered 
together  by  the  court ;  and  if  it  is  to  be  gathered  from  the 
statement  that  evidence  exists  in  regard  to  the  alleged  ofience 
which  will  constitute  a  defence  to  the  charge,  or  relieve  the 
accused  from  a  measure  of  culi^ability,  the  court  will  prop- 
erly call  upon  the  judge  advocate  to  obtain  and  introduce 
such  evidence,  if  luacticable.  XI Y,  5So,  590;  XYII,  48; 
XXYI,  548,  502;  XXYIII,  123  ;  XXIX,  11,  348;  XXX,  073. 

^  See  views  of  the  Judge  Advocate  General,  relating  to  the 
subject  of  this  paragraph,  i^ublished  in  G.  C.  M.  0. 09,  Hdqrs. 
of  Army,  1877. 


378  PLEA. 

5.  It  lias  not  unfrequently  happened  that  enlisted  men, 
charged  with  desertion,  have,  in  connection  with  a  plea  of 
guilty,  made  a  statement  disclaiming  having  had,  in  absent- 
ing themselves,  any  intention  of  abandooing  the  service,  and 
stating  facts  which,  if  true,  constitute  absence  without  leave 
only.  In  such  a  case  the  accused  cannot  in  general  fairly  be 
convicted  of  desertion  in  the  absence  of  an  investigation,  and 
the  court  will  properly,  therefore,  induce  him  to  change  his 
plea  to  not  guilty,  or  direct  this  i)lea  to  be  entered  and  take 
such  evidence  as  may  be  attainable,  to  show  what  offence  was 
actually  committed.^     XXVI,  5G2. 

G.  Statements  inconsistent  with  the  plea  have  not  rarely 
been  made  in  cases  like  larceny  where  several  distinct  ele- 
ments are  required  to  constitute  the  crime  in  law.  For 
exami)le,  a  soldier  will  plead  guilty  to  a  charge  of  larceny, 
and  thereupon  make  a  statement  disclaimiug  the  peculiar 
intent,  (animus  furandi,)  necessary  to  the  offence,  thus  reallj^ 
admitting  only  an  unauthorized  taking.  In  such  cases  the 
court  will  properly  iu struct  the  accused  that  he  should  change 
his  plea  to  not  guilty,  and,  if  he  declines  to  do  so,  will  prop- 
erly call  upon  the  judge  advocate  to  introduce  evidence  sbow- 
ing  the  actual  offence  committed.  XXVIIT,  G77;  XXIX, 
658. 

7.  A  court-martial  is  authorized,  in  any  case,  in  its  discre- 
tion, to  permit  an  accused  to  withdraw  a  plea  of  not  guilty, 

^  The  views  of  the  Judge  Advocate  General,  as  presented 
in  §§  3-5,  have  been  adopted  in  the  General  Orders  of  the 
War  Department  and  in  nui^ierous  Orders  of  the  various 
military  department  &c.  commands.  In  G.  C.  ]\I.  O.  ',  War 
Dept.  1872,  the  Secretary  of  War  observes,  in  regard  to  two 
cases  of  soldiers,  as  follows:  ''The  written  statemeuts  sub- 
mitted by  the  accused  are  contradictory  of  their  pleas  of 
^  guilty.'  The  Court  should  have  regarded  these  statements 
as  neutralizing  the  eft'ect  of  their  i^leas,  and  shouki  have  had 
the  accused  instructed  as  to  their  legal  rights,  aud  advised 
to  change  their  pleas  with  a  view  to  the  hearing  of  testimony. 
It  not  unfrequently  hai)pens  that  soldiers  do  not  understand 
the  legal  dilierence  between  absence  without  leave  and  deser 
tion,  or  are  wholly  unable  to  discrimiuate  as  to  the  grade  of 
their  ofi'enses,  as  determined  by  their  motives.  They  thus, 
sometimes,  ignorantly  plead  guilty  and  are  sentenced  for 
crimes  of  which  tliey  may  be  actually  innocent.  The  pro- 
ceedings, lindings,  and  sentences  are  disapproved."  And  see 
G.  0.  M.  O.  31,  War  Dept.  187G. 


PLEA.  379 

and  substitute  one  of  guilty,  and  mce  versa,  or  to  withdraw 
either  of  these  general  pleas  and  substitute  a  special  plea. 
And  wherever  the  accused  ai)i)lies  to  be  allowed  to  change 
or  modify  his  plea,  the  court  should  in  general  consent  pro- 
vided the  application  is  made  in  good  faith  and  not  for  the 
purpose  of  delay,  and  to  grant  it  will  not  result  in  unreason- 
ably protracting  the  investigation.     XXX,  G72. 

8.  Objections  to  the  charges  or  specifications  in  matters  of 
form  should  be  taken  advantage  of  by  special  i^leas  in  the 
nature  of  ^;/ea6'  in  abatement.  Such  are  objections  to  the 
specifications  as  inartificial,  indefinite,  or  redundant ;  or  as 
misnaming  the  accused,  (or  other  person  required  to  be  speci- 
fied,) or  misdescribinghim  as  to  his  rank  or  ofiice;  or  as  con- 
taining insufticient  allegations  of  time  or  place,  &c.  In  such 
cases  the  objection  should  be  raised  by  a  special  plea  in  abate- 
ment, in  order  that  errors  capable  of  amendment  may  be 
amended  on  the  spot  by  the  judge  advocate,  and — the  plea 
of  not  guilty,  (or  guilty,)  being  then  made — the  trial  may 
proceed  in  the  usual  manner.  Objections  of  this  class,  not 
thus  taken,  will  i)roperly  be  considered  as  ivaived  hy  the  idea 
of  guilty  or  not  guilty,  and  their  existence  will  not  then  aftect 
the  validity  of  the  proceedings  or  sentence.  V,  577;  YII, 
234;  IX,  518;  XY,  117;  XIX,  GIO;  XXIY,  140;  XXY, 
100;  XXYIII,  372;  XXX,  288;  XXXIY,32;  XXX Y,  450; 
XXXYIII,  654. 

Where  without  preliminary  objection,  the  accused  pleads 
guilty  or  not  guilty  to  a  specification,  in  Avhich  he  is  incor- 
rectly named  or  described,  such  i^lea  will  be  regarded  as  an 
admission  by  the  accused  of  his  identity  with  the  person  thus 
designated,  and  he  cannot  thereafter  object  to  the  pleadings 
on  account  of  misnomer  or  misdescription.  Y,  577;  XY,  117; 
XXY,  100. 

9.  Objections  to  the  charges  and  specifications  on  account 
of  matter  of  subHtance, — as  that  they  do  not  contain  the  neces- 
sary allegations,  or  otherwise  do  not  set  forth  facts  constitut- 
ing military  offences, — should  properly  he  made  at  the  outset 
of  the  proceedings  by  a  special  plea  in  the  nature  of  a  demurrer, 
or  they  will  in  general  be  regarded  as  icaired. 

So,  objections  going  to  the  legal  constitution  or  composition 
of  the  court,  or  to  its  jurisdiction,  should  also  properlj'  be 
specially  presented  when  the  accused  is  first  called  upon  to 


380  PLEA  IN  ABATEMENT — POSSE   COMITATUS. 

plead :  valid  objections  of  tbis  radical  character,  however,  are 
not  icaivcd  if  the  accused,  instead  of  submitting  a  special  plea, 
pleads  over  to  the  merits,  since  consent  cannot  make  legal 
that  which  is  illegal,  or,  in  a  criminal  case,  confer  jurisdiction 
where  none  exists  in  law.  XIX,  640.  [See  Court  Martial, 
II  §  7  and  note.] 

10.  Facts  and  circumstances  which  are  properly  matters  of 
evidence  are  not  legitimate  subjects  of  pleas  j  as,  for  exami)le, 
circumstances  going  to  extenuate  the  oftence.  Thus  held 
that  good  conduct  of  the  accused  in  battle  subsequent  to  the 
commission  of  the  oftence  charged  could  not  properly  be  pre- 
sented in  the  form  of  a  plea.  YI,  79.  So  held  that  the  fact 
that  the  charge  was  preferred  through  personal  hostility  to 
the  accused  was  not  matter  for  i^lea,  but,  if  desired  to  be 

taken  advantage  of,  should  be  offered  in  evidence.  XXXI Y, 
554. 

PLEA  IN  ABATEMENT. 

See  charge  ^  5,  12. 
PLEA  §  8. 


POSSE  COMITATUS.i 

1.  Prior  to  the  enactment  of  s.  15,  Act  of  June  18,  1878,  c. 
263,  it  was  deemed  legal,  under  the  imi)lied  authority  of  s. 
27  of  the  Judiciary  Act  of  Sept.  24,  1780,  (now  contained  in 
Sec.  787,  Eev.  Sts.,)  for  a  U.  S.  marshal  or  deputy  marshal  to 
call,  where  necessarj^,  upon  a  military  force  of  the  United 
States  to  assist  him  in  the  execution  of  the  i^rocess  of  the 
courts  of  the  United  States  ;  and  such  employment  was  not 
unfrequently  resorted  to,  the  military  being  also  in  general 
expressly  directed  by  the  i)roper  superior  to  comply  with  the 
call  of  the  marshal.  In  the  existing  state  of  the  law,  how- 
ever, i.  e.  in  view  of  the  legislation  of  1878,  the  army  cannot 
legally  be  called  upon  to  serve  upon  a  marshal's  posse,  since 

1  u  Formerly  the  posse  comitatiis^  which  was  the  strength  to 
prevent  felonies,  must  in  a  great  proportion  have  consisted 
of  military  tenants  who  held  lands  by  the  tenure  of  military 
service.  If  it  is  necessary  for  the  execution  of  the  law,  it  is 
not  only  the  right  of  soldiers  but  it  is  their  duty  to  exert 
themselves  in  assisting  the  execution  of  a  legal  i)rocess." 
Lord  Mansfield,  C.  J.  in  Burdett  v.  Abbott,  4  Taunton,  450. 


POST   COMMANT>ER.  381 

such  service  is  not  ''expressly  authorized "  by  any  statute. 
[See  Army— EMPLOYMENT  of  for  civil  purposes  §  G.] 

2.  Though  dicta  are  to  be  met  with  in  the  authorities  look- 
ing to  such  a  service  as  legal^  it  is  clear  that  the  military 
forces  of  the  United  States,  cannot,  as  such,  be  permitted,  in 
any  event,  to  serve  upon  the  2^osse  comitatus  of  a  sheriff,  or 
other  executive  official  whose  function  it  is  to  execute  the 
local  laws  of  a  State  or  Territory.     XXXVI,  450. 

3.  While  the  object  of  the  serving  of  IT.  S.  troops  on  the 
posse  of  a  U.  S.  marshal,  (where  legally  authorized  so  to 
serve,)  is  simply  to  assist  and  co-operate  with  him  in  the 
enforcement  of  the  i)rocess  committed  to  him  for  execution, 
and  the  commander  of  the  detachment  is  to  consider  himself 
as  acting  in  subordination  to  the  civil  officer,^  the  troops 
employed  are  to  be  regarded  as  under  the  command  of  their 
military  sui^eriors,  and  directly  responsible  to  the  latter  as  on 
other  occasions  of  the  performance  of  military  duty  and 
service.2    XXXIX,  458,  577. 

4.  Officers  and  soldiers  serving  on  a  posse  should  confine 
themselves  strictly  to  their  legitimate  duties.  They  should 
refrain  from  violence  and  disorder,  and  guard  against  any 
irregularities  that  might  tend  to  compromise  the  army  with 
the  pubUc.3    XXXYI,  181. 


POST  COMMANDER. 

1.  A  post  commander  cannot  properly  allow  his  post  to 
become  an  asylum  for  fugitives  from  civil  justice.  XXXVI, 
450. 

2.  Held  that  the  commander  of  the  prison  post  at  Alcatraz 
Island  was  authorized  to  make  and  enforce  all  necessary  and 
proper  regulations  for  the  safe  keeping  and  government  of 
the  military  prisoners  there  confined  j  that  he  might,  by  the 
use  of  force,  if  needful,  but  using  no  more  force  than  was 
necessary,  prevent  civilians  from  landing  on  the  Island  in 
violation  of  the  regulations,  and  put  such  off  the  Island  who 

^  See  Atty.  Gen.  Evarts'  Letter  of  Instructions  cited  under 
Army— Employiment  of  for  ciyil  purposes  §  (3. 

-  See  the  military  instructions  published  in  G.  O.  90  Hdqrs. 
of  Armv,  1870. 

^^  Compare  G.  O.  29,  Dept.  of  the  Gulf,  1874. 


382  POST   TRADER. 

had  landed  there  contrary  to  the  same  j  that,  in  an  extreme 
case,  as  where  a  civilian  engaged  in  aiding  a  prisoner  to 
escape,  and  no  other  means  of  prevention  would  avail,  he 
might  proi)erly  order  the  party  to  be  fired  upon  by  the  guard. 
XXXII,  525. 

3.  Where  a  general  court-martial  has  been  convened  at  a 
military  post  by  the  department  commander,  the  commander 
of  the  post  is  not  empowered,  in  the  absence  of  authority 
from  such  superior,  to  refer  cases  to  the  court  for  trial.  Such 
action  has  sometimes  been  taken  and  acquiesced  in,  but, 
(unless  specially  authorized,)  it  is  irregular  and  a  transcending 
of  his  province  by  the  post  commander.    XLI,  306. 

See  thirty  EIGHTH  ARTICLE  $  5. 
FIFTY  NINTH  ARTICLE  §  8. 
EIGHTIETH  ARTICLE  ^  2,  3. 
ONE  HUNDRED  AND  FOURTH  ARTICLE  $  6. 
ONE  HUNDRED  AND  TWELFTH  ARTICLE  §  2,  7. 
COURT-MARTIAL,  I  §  5,  8. 

POST  TRADER. 

1.  Sutlers  having  been  finally  done  away  with,  from  and 
after  July  1,  1867,  by  the  Act  of  July  28,  1866,  c.  299,  s.  25, 
Congress,  by  Joint  Eesoiution  of  March  30,  1867,  conferred 
authority  ui^on  ''the  commanding  general  of  the  army  to 
permit  a  trading  establishment  to  be  maintained,"  after  the 
above  date  of  July  1,  1867,  ''at  any  military  i)ost  on  the 
frontier  not  in  the  vicinity  of  any  city  or  town,  (and  situated 
at  any  point  between  the  100th  meridian  of  longitude,  west 
from  Greenwich,  and  the  eastern  boundary  of  the  State  of 
California,)  when  in  his  judgment  such  establishment  is 
needed  for  the  accommodation  of  emigrants,  freighters  and 
other  citizens :  *  *  *  provided  that  such  traders  shall  be 
under  i:)rotection  and  military  control  as  camp-followers." 

By  the  Act  of  July  15, 1870,  c.  294,  s.  22,  this  statute  was 
repealed  and  there  was  enacted  in  its  place  the  following : 
^'  That  from  and  after  the  passage  of  this  Act,  the  Secretary 
of  War  be,  and  he  is  hereby,  authorized  to  permit  one  or 
more  trading  establishments  to  be  maintained  at  any  military 
post  on  the  frontier  not  in  the  vicinity  of  any  city  or  town, 
when,  in  his  judgment,  such  establishment  is  needed  for  the 
accommodation  of  emigrants,  freighters,  and  other  citizens  j 


POST   TEADER.  383 

and  the  persons  to  maintain  such  trading  establishments 
shall  be  ai^pointed  by  him  :  provided  that  such  traders  shall 
be  under  protection  and  military  control  as  camp-followers." 

This  i)rovision  constituted  the  existing  law  on  the  subject 
at  the  date  of  the  adoption  of  the  Eevised  Statutes,  and  is 
incorporated  in  the  same  in  Sec.  1113. 

Further,  by  the  Act  of  July  24,  187G,  c.  22G,  s.  3,  it  has 
been  provided:  "That  every  military  post  may  have  one 
trader,  to  be  appointed  by  the  Secretary  of  War  on  the  rec- 
ommendation of  the  council  of  administration,  approved  by 
the  commanding  officer,  who  shall  be  subject  in  all  respects 
to  the  rules  and  regulations  for  the  government  of  the  army." 

The  Act  of  1876,  though  apparently  intended  to  supersede 
Sec.  1 113,  Eev.  Sts.,  does  not  necessarily  repeal  the  same.  It 
is  believed  therefore  to  be  still  proper  for  the  Secretary  of 
War,  in  appointing  a  post  trader,  to  take  into  consideration 
not  merely  his  fitness  and  accei)tableness  as  a  i^urveyor  for 
the  army  at  a  military  post,  but  also  the  question  whether  a 
trading  establishment  is  needed  at  the  post  '^  for  the  accom- 
modation of  emigrants,  freighters,  or  other  citizens."  ^  XLIII, 
239. 

2.  Under  the  provision  of  the  Act  of  187G,  a  trader  may 
be  appointed,  not  merely  for  remote  or  frontier  i^osts,  at 
which  only  trading  establishments  could  be  maintained  under 
previous  enactments,  but  for  any  military  posts,  in  the  dis- 
cretion of  the  Secretary  of  War.     XXXIX,  G71. 

3.  The  term  of  the  appointment  or  license  of  a  post  trader, 
not  being  fixed  by  the  statute,  is  regulated  by  the  general 
principle  of  public  law,  that  where  the  tenure  of  a  public 
office  or  emi)loyment  created  by  Congress  is  not  defined  by 
that  body,  the  same  is  to  be  regarded  as  held  at  the  pleasure 
of  the  appointing  power.^     XXXIX,  639. 

^  That  Sec.  1113  is  not  superseded,  in  the  opinion  of  the 
Attorney  General,  is  evident  from  his  opinion  of  Dec.  11, 
1879,  published  in  G.  O.  112,  Hdqrs.  of  Army,  1879.  And 
compare  oi)inion  of  the  Solicitor  General  of  Feb.  2, 1880,  j)ub- 
lished  in  G.  O.  11  Id.  1880. 

'Ex parte  Hennen,  13  Peters,  230.  It  is  held  by  the  At- 
torney General  in  an  opinion  of  May  19, 1877,  (XV  Oinns. — ,) 
that  the  appointment  of  a  post  trader  is  a  mere  license  revo- 
cable at  the  ])leasure  of  the  Secretary  of  War ;  the  concur- 
rence of  the  post  council  and  post  commander  not  being 
required  for  the  removal,  as  they  now  are  (by  the  Act  of  July 
24,  1870)  for  the  appointment,  of  the  trader!^ 


384  POST  TRADER. 

4.  A  post  trader  is  not,  under  the  Act  of  1876,  and  was 
not  under  tliat  of  18G7  or  1870,  amenable  to  the  jurisdiction 
of  a  military  court  in  time  of  peace.  The  earlier  statutes 
assimilated  him  to  a  camp-follower,  but,  strictly  and  i^rop- 
erly,  there  can  be  no  such  thing  as  a  camp  follower  in  time 
of  peace,  and  the  only  military  jurisdiction  to  which  a  camp 
follower  may  become  subject  is  that  indicated  by  the  God  Ar- 
ticle of  War,  viz.  one  exercisable  only  "in  the  field"  or  on 
the  theatre  of  war.  Nor  can  the  Act  of  1870,  In  providing 
that  post  traders  shall  be  ''  subject  to  the  rules  and  regula- 
tions for  the  government  of  the  army,"  render  them  amenable 
to  trial  by  court  martial  in  time  of  peace.  The  subjection 
referred  to  in  the  Act  is  apparently  only  to  the  body  of  ad- 
ministrative directions  known  as  the  Army  Eegulations.  [See 
§  6  infra.]  If,  however,  the  Articles  of  War  are  intended  to 
be  included,  the  amenability  imposed  is  simply  that  fixed  by 
the  particular  Article  applicable  to  civilians  emi^loyed  in  con- 
nection with  the  Army,  mz.  Art.  63,  which  attaches  this 
amenability  only  in  time  of  war  and  in  the  field.  Thus, 
though  post  traders  might  i^erhaps  become  liable  to  trial  by 
court  martial  if  employed  on  the  theatre  of  an  Indian  war, 
as  persons  serving  with  an  army  in  the  field  in  the  sense  of 
that  Article,  they  cannot  be  made  so  liable  when  not  thus 
situated,  and,  as  a  general  rule,  the  only  adequate  remedy  in 
the  event  of  serious  misconduct  by  a  trader  in  time  of  x^eace 
would  be  the  summary  withdrawal  of  his  appointment  or 
license  by  the  Secretary  of  War.  XXXIX,  395.  [See  note 
to  §  3,  supra.] 

5.  Unlike  the  sutler  under  the  old  law,  the  post  trader  has 
no  lien  upon  the  pay  of  soldiers  for  articles  sold  to  them  on 
credit.  Their  pay  cannot  legally  be  in  any  part  retained  by 
the  company  commander  to  reimburse  the  trader,  nor  can  it 
be  withheld  by  the  paymaster  for  such  purpose  against  their 
consent.  If  a  soldier  in  debt  to  the  trader  consents  to  the 
paymaster's  delivering  his  pay  in  whole  or  in  part  to  the 
trader  at  the  pay  table,  the  paymaster  will  be  protected  in 
thus  paying  the  same;  the  soldier  being  viewed  not  as  thus 
assigning  his  pay,  (which  would  be  in  violation  of  law — Sec. 
1291,  Eev.  Sts.,)  but  as  himself  receiving  the  same  and  turn- 
ing it  over  to  the  trader  in  and  by  the  same  act.  XXVII,  282, 
o59 ;  XXIX,  229,  231  j  XXXI,  055.     So,  a  paymaster  is  not 


POST   TRADER.  385 

authorized,  without  the  express  consent  of  the  soldier,  to  de- 
duct from  the  pay  due  him  on  a  ^^final  statemenV  an  amount 
admitted  to  be  due  by  him  to  a  post  trader.  XXIX,  231. 
An  amount  due  by  an  officer  or  soldier  to  a  trader  cannot 
legally  be  forfeited  or  stopped  for  the  benefit  of  the  lattei  by 
a  sentence  of  court-martial.     XXVII,  422;  XXXI,  37G. 

6.  The  Army  Regulations  of  1803,  applicable  to  sutlers, 
were  declared  by  the  Secretary  of  War,  in  a  Circular  issued 
from  the  War  Department,  dated  June  7,  1871,  to  be  not  ap- 
l^licable  to  i)ost  traders,  and  it  was  added :  ^'no  tax  or  burden 
in  any  shax)e  will  be  imposed  uj)on  them."  Subsequently, 
however,  to  the  passage  of  the  Act  of  July  24,  1876,  in  which 
it  is  provided  that  traders  shall  be  subject  to  the  rules  and 
regulations  for  the  army,  this  class  of  i^ersons  were,  by  a 
Circular  issued  from  the  Headquarters  of  the  Army,  dated 
July  31,  1878,  required  to  be  ^'assessed  and  held  to  pay,  at  a 
rate  to  be  determined  by  the  Post  Council  of  Administration, 
not  exceeding  ten  cents  a  month  for  every  officer  and  enlisted 
soldier  serving  at  the  post — the  monthly  average  number  of 
such  i)ersons  to  be  determined  equitably  by  the  Council — for 
the  benefit  of  the  i)ost  fund,  as  required  by  Gen.  Orders  Xo. 
24,  May  1878,^  from  this  office."  Advised  that  this  imposition 
of  a  pecuniary  mulct  upon  a  civilian,  not  subject  to  the  legal 
liabilities  of  a  sutler,  was  scarcely  within  the  i)rovince  of  an 
administrative  regulation,  and  that  the  same  could  be  enforced 
with  entire  legality  only  by  authority  of  statute.^  XLIII, 
157,  239. 

7.  It  was  held  by  Attorney  General  Gushing  in  1855 \  that 
a  sutler  employed  at  a  military  post  could  not  legallj^  be  re- 
quired by  the  authorities  of  a  State  to  take  out  a  license  to 
enable  him  to  make  sales  to  officers  or  soldiers  of  the  army^ 
or  to  pay  a  tax  on  the  articles  kept  by  him  at  the  post  for 
making  such  sales ;  and  this  on  the  ground  that  ^'  the  supply 
of  goods  to  the  officers  and  soldiers  of  a  post  by  the  post  sut- 

^This  Order,  in  adopting  the  recommendation  of  a  Board 
to  that  efiect,  had  already-  in  substance  directed  the  assess- 
ment of  this  tax. 

^A  difierent  conclusion  is  arrived  at  in  an  opinion  of  the 
Solicitor  General,  i)ublished  in  G.  J.  11,  Ildqrs.  of  Army, 
1880. 

3  VII  Opins.  of  Attys.  Gen.  578.  And  compare  IV  Id.  462. 
25  D 


386  POST   TRADER. 

ler  is  one  of  the  means  authorized  by  Congress  in  the  exer- 
cise of  the  war  i^ower  intrusted  to  it  by  the  Constitution." 
This  oi:)inion,  however,  further  holds,  (to  cite  from  the  head- 
note:)  "  But  sutlers  may  be  comi)elled  to  pay  license  if  they 
enter  into  general  trade  within  the  State."  So,  in  a  case  of  a 
trader  at  a  military  post  in  a  Territory,  by  whom  liquor  was 
kept  for  sale  as  a  part  of  his  stock,  who  addressed  to  the 
Secretary  of  War  an  inquiry  as  to  whether  he  could  legally 
be  compelled  by  the  Territorial  authorities  to  pay  a  tax  for  a 
license  to  sell  liquor,  held.,  that,  inasmuch  as  the  business  of 
post  traders  extends  to  the  making  of  sales  to  civilians, — 
their  establishments  having  originally  been  authorized  '^  for 
the  accommodation  of  emigrants,  freighters,  and  other  citi- 
zens," and  their  trade  having  never  been  subsequently  re- 
stricted to  i^ersons  connected  with  the  army, — they  could  in 
general  legally  be  required  by  the  local  authorities  of  the 
State  or  Territory  to  take  out  and  pay  for  licenses  in  the  same 
manner  as  other  merchants  engaged  in  similar  trades ;  ^  but 
remarlced  that  the  question  of  the  legality  of  such  a  tax  was 
rather  one  for  the  local  courts  than  for  the  Secretary  of  War. 
XXX,  177;  XXXYI,  595;  XXXIX,  395 ;  XLI,  306 ;  XLII, 
83;  XLIII,  155. 

8.  The  mere  fact  that  a  post  trader  carries  on  business  on 
a  military  reservation  in  a  Territory  cannot,  (in  the  absence  of 
any  provision  in  the  organic  act  relieving  him  therefrom,) 
affect  his  liability  to  be  taxed  by  the  civil  authorities ;  nor 
can  such  liability  be  affected  bj^  the  tiict  that  he  carries  on 
business  on  a  military  reservation  within  a  State,  unless  ex- 
clusive jurisdiction  over  the  same  has  been  ceded  to  or 
reserved  by  the  United  States.  XLIII,  155.  [See  Civil 
Process  §  4  ;  Tax  §  3.] 

9.  Held  that  a  post  trader  duly  appointed  for  a  military 
post  might  proi)erly  be  authorized  to  erect  on  the  post  reser- 
vation, on  a  site  to  be  selected  by  the  post  commander,  such 
buildings  as  were  necessary  or  desirable  for  his  business. 

^  This  view  was  concurred  in  by  the  Department  of  Justice. 
See  opinion  of  the  Solicitor  General  published  in  G.  0. 11, 
Hdqrs.  of  Army,  1880.  Also — on  the  point  that  the  law  still 
recognizes  the  civil  branch  of  the  business  of  traders — see 
the  opinion  of  the  Attorney  General,  published  in  G.  O.  112, 
Hdqrs.  of  Army,  1879. 


POST   TRADER.  387 

XXXIITj  453.  And  held  also  that,  on  liis  appointment  or 
employment  being  terminated,  be  wonkl  proper! 3^  be  allowed 
a  reasonable  time  to  remove  such  buildings.^     XLT,  122. 

10.  Held  that  a  post  trader,  whether  appointed  by  the 
anthority  of  the  Act  of  July  15,  1870,  (Sec.  1113,  Eev.  Sts.,) 
or  of  that  of  July  24,  187G,  was  not — inasmuch  as  he  did  not 
exercise  a  public  function  or  act  for  or  represent  the  United 
States  in  any  particular — a  ^'i:)erson  holding  a  commission  or 
appointment  under  the  United  States,"  in  the  sense  of  Sec. 
1854,  Eev.  Sts.,  and  was  therefore  not  ineligible  to  be  a  mem- 
ber of  the  legislature  or  to  hold  office  under  the  government 
of  a  Territory.     XLII,  46. 

11.  A  post  trader  cannot  legally  trade  with  Indians  in  the 
Indian  country  without  being  specially  licensed  therefor  ac- 
cording to  the  provisions  of  Sec.  2129,  Eev.  Sts.  XLII,  400. 
There  is  nothing  in  the  appointment  or  office  of  a  post  trader 
from  which  there  can  be  imi^lied  any  special  authority  to  trade 
with  Indians,  or  which  can  exempt  him  in  any  measure  from 
the  application  of  the  laws,  (see  Tit.  XXYIII,  ch.  4,  Eev.  Sts.,) 
I)rohibitiug  or  restricting  such  trade.^  So  where  a  post  trader 
had  been  authorized,  (under  Sec.  2139,  Eev.  Sts.,)  to  keep 
liquor  at  a  military  post  in  the  Indian  country  for  the  pur- 
looses  of  sale,  under  regulations,  to  officers  and  soldiers,  held 
that  the  authority  could  not  operate  as  a  license  to  make  sales 
of  the  same  to  Indians.     XLI,  544. 

12.  Held  that  a  i)ost  trader  could  not,  against  his  will,  be 
compelled  hy  the  post  council  or  post  commander  to  sell  spir- 
ituous liquors.  Where  a  trader  refuses  to  keep  and  sell  any 
particular  article  or  articles  which,  in  the  opinion  of  the  coun- 
cil and  commander,  he  should  trade  in,  the  only  remedy  is  by 
an  appeal  to  the  Secretary  of  War,  who,  if  he  deems  the  re- 
fusal unreasonable,  may  cancel  the  trader's  license.  XLIII, 
106. 

^See  these  conclusions  concurred  in,  in  a  subsequent  opin- 
ion of  the  Attorney  General,  in  XIV  Opius.  125. 

-  See  extracts  from  the  contirmatory  opinion  of  the  Attorney 
General,  published  in  G.  O.  112,  Hdqrs.  of  Army,  1879. 


388  POWER   OF   ATTORNEY — PRESIDENT. 


POWER  OF  ATTORNEY. 

A  contractor  having  a  claim  against  the  United  States, 
execnted  a  power  of  attorney  to  a  party,  (a  lawyer,)  author- 
izing him  to  represent  him  in  prosecuting  his  claim  before  the 
War  Department,  &c.,  and  to  receive  for  him  payment  of  such 
amounts  as  should  be  allowed  him.  The  power  was  expressed 
to  be  "irrevocable,'^  but  did  not  in  terms  A^est  the  attorney 
with  an3'  property  or  interest  in  the  claim,  nor  did  it  appear 
from  the  relations  of  the  i)arties  or  otherwise  that  any  such 
interest  existed.  Subsequently,  and  before  the  allowance  of 
the  claim,  the  claimant,  by  a  second  j)ower,  expressly  revoked 
the  former  power  and  substituted  another  person  as  attorney 
in  the  place  of  the  party  originally  constituted.  Held  that 
the  first  power  was  not  in  itself  a  power  coupled  with  an 
interest;  that  the  fact  that  fees  were  probably  to  be  earned 
by  the  attorney  did  not,  (in  the  absence  of  a  si^ecial  contract 
making  the  same  a  lien  ujjon  the  amounts  authorized  to  be 
received  under  the  i)ower,)  constitute  an  interest  therein;^ 
that  the  word  "irrevocable,"  as  em^doyed  in  the  power  was 
under  the  circumstances  without  legal  significance  or  effect ;  ^ 
that  such  power  was  therefore  revocable  at  the  pleasure  of 
the  claimant;  and  that  the  attorney  substituted  by  the  second 
power  would  accordingly  properly  be  recognized  at  the  War 
Department.^    XXXI,  164. 

See  contract  §  20. 


PRESIDENT,  I— AUTHORITY  TO  COHVENE  GENERAL 
COURTS  MARTIAL. 

1.  The  President  is  empowered  to  convene  general  courts- 
martial,  not  merely  in  the  class  of  cases  specified  in  the  72d 
Article  of  War,  (viz.,  where  a  military  officer,  thereby  author- 
ized to  convene  such  a  court,  is  the  "accuser  or  prosecutor" 
of  an  officer  in  his  command  whom  it  is  desired  to  bring  to 

^  See  Bristol's  case,  XI  Opius.  of  Attys.  Gen.  7. 

2  Pratt  V.  United  States,  3  Ct.  CI.  117  j  Hunt  v.  Eousmanier's 
Admrs.  8  Wheaton,  174. 

^  CompaTe  oi)inion  of  the  Attorney  General  of  February  7, 
1879,  (XVI  Opins. .) 


PRESIDENT,  II— AUTHORITY  OVER   COURTS  MARTIAL.   380 

trial.)  but,  generally,  and  in  any  case,  by  virtue  of  his  autlior- 
ity  as  Commander  in  Chief  of  the  Army.  As  sue]),  he  is 
authorized  to  give  orders  to  his  subordinates,  and  the  con- 
vening of  a  court  martial  is  simply  the  giving  of  an  order  to 
certain  officers  to  assemble  as  a  court  and  exercise  certain 
powers  conferred  upon  them  when  so  assembled  by  the  Arti- 
cles of  War.  [See  Court  Martial,  I  §  1.]  This  general 
power  has  been  exercised  in  repeated  instances  by  the  Presi- 
dent since  the  formation  of  the  government.  Indeed,  if  the 
same  could  not  be  exercised,  it  would  be  impracticable,  in 
the  absence  of  an  assignment  of  a  general  officer  to  command 
the  Army,  to  administer  military  justice  in  a  considerable 
class  of  cases  of  officers  and  soldiers  not  under  the  command 
of  any  department,  &c.,  commander,  as  a  large  proportion  of 
the  officers  of  the  general  staff  for  example.^    XXXIIT,  G03. 

2.  A  convening  of  a  general  court  martial  nominally  by  the 
Secretary  of  War  is  in  law  a  convening  by  the  President,  and 
therefore  as  legal  as  if  the  President  himself  had  signed  the 
order.    IX,  44.    [See  Secretary  of  War.] 

PRESIDENT,  II— AUTHORITY   OVER   THE    PROCEEDINGS 
AND  SENTENCES  OF  COURTS  MARTIAL. 

1.  In  cases  tried  by  general  courts  martial  convened  by 
himself,  either  under  his  general  authority'  as  commander-in- 
chief,  (see  President,  I,)  or  as  provided  in  the  72d  Art.  of 
War  5  as  well  as  in  cases  of  sentences  imposed  upon  general 
officers  and  of  sentences  of  death  or  dismissal  adjudged  in 
time  of  peace,  (see  Arts.  105,  106  and  108;)  as  also  in  cases 
submitted  to  him  for  action  in  time  of  war  under  Art.  Ill, — 
the  President  acts  as  Eeviewing  Authority,  and  may  approve 

*  The  authority  of  the  President  as  Commander-in-chief  to 
institute  general  courts  martial  lias  been  in  fact  exercised 
from  time  to  time,  from  an  early  i)eriod,  in  a  series  of  cases, 
commencing  with  those  of  Brig.  Gen.  Hull,  Maj.  Gen.  Wilkin- 
son, and  Maj.  Gen.  Gaines,  tried  in  1813-1810,  and  including 
that  of  Bvt.  Maj.  Gen.  Twiggs,  tried  in  1858.  His  authority 
in  this  particular  has  recently  been  in  substance  affirmed  by 
the  Judiciary  Committee  of  the  Senate,  in  Eeport  Xo.  SdS, 
dated  March  3, 1879,  Forty  Fifth  Cong.  3d  Session.  [A  single 
member  of  the  Committee  apparently  dissented,  in  a  subse- 
quent report  of  April  7,  1871),  Mis.  lioc.  Xo.  21,  46th  Cong., 
1st  Ses.l 


390  PRESIDENT,  III — AUTHORITY   TO   RESTORE   TO   ARMY. 

or  disapprove  in  whole  or  in  part  the  i^roceedings  or  senteuce, 
or,  in  approving,  mitigate  the  punishment.  But  when  final 
action  has  been  taken  by  him  in  any  of  these  cases,  his  func- 
tion as  reviewing  or  confirming  authority  is  exhausted.  Where 
indeed  he  has  approved  or  confirmed  a  punishment,  and  the 
same  remains  in  any  part  unexecuted,  he  may  of  course  exer- 
cise the  quite  distinct  power  of  pardon ;  but  an  approval  or 
disai^proval  once  given  by  him,  and  duly  notified  to  the 
accused, — though  his  action  may  afterwards  be  discovered  to 
have  worked  an  injustice, — is  beyond  his  power  to  revise, 
reverse,  or  modify.     XXXVIII,  104;  XLII,  91. 

2.  So,  where  a  legal  sentence  adjudged  by  a  court  martial 
has  once  been  duly  executed^  the  same  is  irreversible  and  can- 
not be  rescinded  or  modified  by  virtue  of  any  executive 
authority  of  revision  or  pardon  vested  in  the  President. 
However  severe  or  unjust  such  a  sentence  may  have  been,  or 
whatever  irregularity,  (short  of  an  absolutely  fatal  defect,) 
may  have  ch<iracterized  the  i)roceedings,  the  case,  after  the 
sentence,  as  ai3i)roved,  has  once  taken  efi'ect,  is  wholly  bejond 
executive  control.^  XXXVI,  216,  274,  330;  XXXVIE,  243, 
390,  420;  XXXIX,  234,  242,  248. 

PRESIDENT,  III— AUTEOEITY  TO  KESTOEE  TO  THE  AEMY. 

While,  as  provided  in  Sec.  1228,  Eev.  Sts.,  an  officer  duly 
dismissed  from  the  army  hy  sentence  of  court  martial  can  be 
restored  to  it  only  by  a  new  ai3]3ointment;  so,  except  by  a  new 
appointment,  the  President  cannot  restore  an  officer  separated 
from  the  army  otherivlse  than  by  sentence,  viz.  by  summary 
dismissal  by  order,  or  by  being  "  wholly"  retired,  or  by  the 
acceptance  of  a  resignation.  Thus  separated,  the  officer  js 
made  a  civilian  as  eftectually  as  if  he  had  been  dismissed  by 
sentence ;  and,  as  to  a  readmission  to  the  service,  he  is  in 
precisely  the  position  of  a  civilian  who  has  never  been  in  the 
army  at  all.  He  can  therefore  be  admitted  to  it  only  in  the 
mode  pointed  out  in  the  Constitution,  (Art.  II,  sec.  2,  §  2.)  A 
revocation  of  the  order  by  which  he  was  dismissed  or  wholly 

^  Such  a  sentence  is  "no  longer  subject  to  review  by  the 
President."  XV  Opins.  of  Attys.  Gen.  — ,  (Opinion  of  June 
G,  1877.)  And  see  in  this  connection.  Dismissal,  I,  5,  (>;  Id. 
II §8;  Discharge  §  13;  Xew  Trial;  Pardon  §  4;  IIeview- 
ING  Authority  §  8 ;  Sentence  §  15 — and  authorities  cited 
in  notes  to  same. 


PRESIDING  OFFICER   OF   THE   COURT.  391 

retired,  or  of  the  acceptance  of  his  resignation,  must,  (after 
notice,)  be  quite  futile  and  ineffectual.  An  order  i^urporting 
to  rerolce  a  previous  order  by  Avhich  an  officer  has  been  legally 
detached  from  the  military  service  is  a  simple  nullity.^  XXXY, 
46G5  XXXVir,  451;  XXXIX,  474;  XLl,  35,  391,011. 

As  to  the  authority  of  the  President  in  regard  to  other 
subjects,  see,  especially, — Fourth  Article  §  3 ;  One  Hun- 
dred AND  Sixth  Article  ;  One  Hundred  and  Eleventh 
Article  ;  One  Hundred  and  Twelfth  Article  §1,4; 
Appointment  §  3,  5,  G,  9,  10,  11;  Ar3iy — Employment  of 
FOR  CIVIL  PURPOSES  §  1,  2,  3,  4,  G;  Army  Eegulations 
§  1, 3,  notes ;  Cadet  §  9 ;  General  Staff  ;  Habeas  Corpus 
§  1,  2;  Law  of  War  §  1;  Martial  Law  §  1;  Military 
Eeservation  §  1,  note;  Pardon;  Retirement  §  3,  G; 
Secretary  of  War;  Statutes— Construction  of,  II; 
War  Power. 

PRESIDING  OFFICER  OF  THE  COURT. 

1.  Xo  special  rank  or  qualifications  are  required  for  the 
position  of  i)resident  of  a  military  court.  In  our  practice  the 
president  is  not  api^ointed  as  such  ;  he  is  simply  the  senior 
in  rank  of  the  members  present,  and  he  presides  by  virtue  of 
his  seniority  alone.  If  the  senior  of  the  officers  detailed  in 
the  convening  order  is  not  i)resent  with  the  court  at  the 
original  organization,  the  next  senior  i^resent  becomes  presi- 
dent ;  so,  if  the  officer  who  i)resided  at  the  beginning  of  a 
trial  is  at  a  subsequent  stage  of  the  proceedings  relieved  or 
compelled  to  be  absent  by  sickness,  &c.,  the  next  ranking 
officer  present  presides  as  a  matter  of  course ;  and  the  senior 
officer  i^resent  with  the  court  at  the  termination  of  the  trial 
authenticates  the  proceedings  as  president.    XXX,  21G. 

2.  While  a  special  authority — that  of  swearing  the  judge 
advocate — is  devolved  upou  the  president  of  a  military  court 
by  statute,  (the  85th  Article  of  War,-)  such  officer  has,  in 
other  respects — as  in  performing  the  usual  duties  of  a  pre- 
siding officer,  in  authenticating  the  proceedings  with  his  sig- 
nature, and  in  communicating  with  the  convening  officer  or 

^  See,  on  this  subject,  authorities  cited  in  notes  to  Dis- 
missal, I  §  G ;  Id.  11  §  8 ;  IIESIGNATION  §  2,  note. 

^The  further  function  devolved  upon  him  by  Art.  52  is  not 
known  to  have  ever  been  exercised  in  our  service :  the  Article 
itself  is  a  dead  letter,  as  is  also  Art.  b'6  in  ])ari  materia. 


392  PRISONER   OF   WAR. 

other  commander,  uo  original  autliority  but  acts  simply  as 
the  representative  and  ^' organ"  of  the  court.^  XXYIII, 
678  -J  XXX,  240. 

3.  In  deliberations  on  questions  raised  n\)OVL  a  trial,  as  well 
as  in  the  finding  and  the  adjudging  of  the  sentence,  the 
presiding  member  is  on  a  i^erfect  equality  with  the  other 
members.  [See  par.  888,  Army  Eegulations.]  He  has  no 
casting  vote,  nor,  if  the  vote  is  even,  does  Ms  vote  have  any 
greater  or  other  weight  or  effect  than  that  of  any  other  mem- 
ber.    XXX,  314. 

4.  The  president  of  a  military  court  has  no  command  as 
such.  As  president  he  cannot  give  an  order  to  any  other 
member.  As  the  organ  of  the  court  he  gives  of  course  the 
directions  necessary  to  the  regular  and  proper  conduct  of  the 
proceedings;  but  a  failure  to  comply  with  a  direction  given 
by  him,  while  it  may  constitute  "conduct  to  the  prejudice  of 
good  order  and  military  discipline,"  cannot  x^rop^i'^y  he 
charged  as  a  "  disobedience  of  a  lawful  command  of  a  suioe- 
rior  officer,"  in  violation  of  Article  21.     XXX,  240,  314. 

5.  For  the  president  of  a  court  martial  to  assume  to  adjourn 
the  court  against  the  vote  of  the  majority  of  the  members, 
would  be  an  unauthorized  act  and  a  grave  irregularitj-,  prop- 
erly subjecting  him  to  a  charge  under  the  62d  Article.^  XXX, 
248. 

See  court  MARTIAL,  I  $  17. 
REVISION  $  6. 

PRISOHER  OF  WAR. 

I — Prisoners  taken  erom  the  Enemy. 

1.  An  engineer  captured  while  doing  duty  on  a  steamer  of 
the  enemy,  held  i)roperly  detained  as  a  prisoner  of  war  j  civil 
employees  of  the  enemy  serving  with  its  armj'  in  the  field 
being  regarded  as  on  the  same  footing  in  this  respect  with 
the  soldiers  of  such  army.    VI,  542. 

2.  Where  certain  persons,  apprehended,  while  engaged  ap- 

^See  par.  888,  Army  Eegulations.  The  language  of  this 
regulation  is  taken  from  the  order  of  Secretary  Crawford  in 
his  review  of  the  case  of  Bvt.  Lt.  Col.  Backenstos,  in  G.  O. 
14,  War  Dept.,  1850. 

^  See  case  of  Backenstos,  G.  0. 14,  War  Dei^t.  1850. 


PRISONER   OF  WAR.  393 

parently  as  partisans  in  a  raid  from  Kentucky  into  Indiana, 
were  held  to  trial  by  a  civil  court  of  the  latter  State  for  rob- 
bery, and  the  confederate  agent  for  the  exchange  of  inisoners 
of  war  made  thereupon  official  application  that  they  should  be 
treated  and  exchanged  as  such  prisoners,  on  the  ground  that 
they  were  confederate  soldiers  acting  under  the  orders  of  their 
military  superiors — advised,  in  view  of  the  serious  doubt  as  to 
their  real  status,  that  they  be  left  to  have  their  offence  passed 
ujjon  by  the  court  which  had  assumed  j  urisdiction  of  their  case, 
and  by  which  the  defence  that  their  operations  were  legitimate 
acts  of  war  could  be  i)roperly  investigated.'     II,  591;  Y,3J:J:. 

3.  Held  that  the  fact  that  an  officer  or  soldier  of  the  enemy 
was  captured  as  a  prisoner  of  war  did  not  exempt  him  from 
the  jurisdiction  of  a  military  commission  of  the  United  States 
for  a  crime  in  violation  of  the  laws  of  war  committed  during 
the  war  i^rior  to  his  capture.     YlII,  529. 

4.  Where  a  prisoner  of  war,  held  with  other  prisoners  at  a 
prison  camp  within  a  State  in  which  the  civil  courts  were  in 
operation,  killed  one  of  his  fellow  prisoners,  advised  that  the 
Government  might  in  its  discretion  turn  him  over  for  trial  to 
the  State  authorities,  or  exchange  him  under  the  cartel  and 
leave  him  to  be  tried  by  the  confederate  authorities.  XIII, 
496. 

5.  The  violation  of  his  parole  by  a  paroled  prisoner  of  war 
is  an  ofi'ence  against  the  common  law  of  war  and  punishable 
with  death.-    VI,  20. 

6.  Where  certain  soldiers  of  the  enemy's  army,  having  been 
taken  prisoners  in  Virginia  ui^on  Lee's  surrender,  were  released 
on  parole,  on  condition  of  their  returning  to  their  homes,  held 
that  this  parole  did  not  authorize  them,  in  the  absence  of 
special  authority  from  the  U.  S.  Government,  to  come  within 
our  lines  and  into  the  State  of  Mar^iand,  although  that  State 
had  been  their  place  of  residence  before  the  war ;  and  that, 
in  actually  coming  into  Maryland,  they  were  chargeable  with 
a  violation  of  their  parole.^    And  Jieldj  further,  that  a  citizen 

^  See  X[  Opins.  of  Attys.  Gen.  240^ 

2  See  G.  O.  100,  AVar  Dept.,  18G3,  §  124.  (Lieber's  Instruc- 
tions.) 

^  In  XI  Opins.  207,  Atty.  Gen.  Speed  says  of  these  paroled 
prisoners  that  they  "cannot  be  regarded  as  having  homes  in 
the  loyal  States.  *  *  *  As  belligerents  their  homes 
were,  of  necessity,  in  the  territory  belligerent  to  the  Govern- 
ment of  the  United  States." 


394  PRISONER   OF   WAR. 

of  Maryland,  in  harboring  and  relieving  them  after  coming 
into  that  State,  was  chargeable  with  an  offence  under  Art. 
45.    XII,  400.     [See  Forty  Fifth  Article  §  1.] 

II — Prisoners  taken  by  the  Enemy. 

7.  Held.,  in  the  absence  of  any  stipolation  to  the  contrary 
in  the  cartel  of  exchange,^  that  a  i)risoner  of  war  of  our 
army,  released  on  parole  by  the  enemy,  might  legally  be  i)ut 
on  duty  as  one  of  the  post  guard  at  a  post  not  in  the  field  or 
threatened  by  the  enemy.^     XXI,  59-}. 

8.  A  x^risouer  of  war,  on  being  j^aroled,  is  not  necessarily 
bound  to  return  to  the  regiment  or  other  command  to  which 
he  was  attached  upon  capture,  or  subject,  if  he  does  not  re- 
turn, to  be  treated  as  a  deserter.  In  the  absence  of  any  spe- 
cial order  given  him  by  competent  authority,  he  is  required 
only  to  abide  by  the  existing  orders  in  regard  to  paroled  pris- 
oners in  general.     XXXIX,  339. 

9.  Where  an  officer  of  our  army,  while  on  trial  or  awaiting 
sentence,  is  taken  prisoner  by  the  enemy,  and  a  sentence  of 
dismissal  adjudged  by  the  court  and  duly  approved  is  not 
officially  communicated  to  him  till,  upon  being  exchanged, 
he  has  returned  to  his  regiment,  he  is  entitled  to  be  treated 
and  paid  as  having  been  in  the  U.  S.  service  up  to  the  date 
of  such  notification.  And  so  of  an  officer  dismissed  by  order, 
or  a  soldier  dishonorably  discharged  by  sentence  under  simi- 
lar circumstances.^     XII,  230 ;  XIII,  589. 

10.  Officers  and  soldiers  of  our  army  taken  x)risoner  by  the 
enemy  and  released  on  parole,  are,  (in  the  absence  of  any 
statutory  provision  to  the  contrary,)  to  be  regarded,  while 
occupying  this  status,  precisely  as  officers  and  soldiers  on  or- 
dinary active  duty,  so  far  as  concerns  their  right  to  i^ay.  I, 
385. 

^  See  X  Opins.  of  Attys.  Gen.  357. 

2  See  G.  O.,  (X.  &  1.  G.  O.,)  of  Feb.  14,  1814;  do.  100,  War 
Dept.  18C;5,  §  130.     (Lieber's  Instrutions.) 

^Xote  the  provision  of  the  Act  of  1814,  now  incorporated 
in  Sec.  1288,  Kev.  Sts.,  entitling  certain  olficers  and  soldiers 
to  be  paid  as  such  during  tlieir  captivity  when  made  jirison- 
ers  of  war  bv  the  euemv.  And  see  Jones  v.  United  States, 
4  Ct.  CI.  197'-,  Phelps  r.'  United  States,  Id.  2(U)— adjudicated 
cases  of  oliicers  dismissed  wliile  prisoners  of  war  and  claim- 
ing pay  under  the  statute. 


PEOCEEDIXGS   AT   LAY>'  AGAINST   OFFICEE,  &C.  395 

11.  While  it  is  laid  down  by  the  authorities^  that  a  prisoner 
of  war  is,  strictly,  justified  in  enlisting  in  the  service  of  the 
enemy  only  by  a  well  founded  ai^x^rehension  of  immediate 
death,  yet  where  soldiers  of  the  federal  army,  while  subjected, 
when  prisoners  in  the  hands  of  the  enemy,  to  extreme  priva- 
tion and  suti'ering  by  which  their  lives  were  imperilled,  were 
induced,  solely  in  order  to  find  means  of  escape  from  such 
desperate  situation,  to  enlist  in  the  enemy's  army,  advised  that 
such  soldiers,  on  subsequently  surrenderiug  to  or  being  cap- 
tured by  our  forces,  should  not  as  a  general  rule  be  treated  as 
deserters  but  should  be  returned  to  duty  with  their  regiments 
without  punishment.  XIV,  looj  XYI,  40,  271.  But  where 
it  appeared  that  certain  soldiers  of  our  army  who  when 
prisoners  of  war  had  enlisted  in  the  enemy's  service,  had  not 
attempted  to  escape  when  they  might  have  done  so,  but  had 
voluntarily  remained  and  fought  in  the  ranks  of  the  enemy's 
army  till  forcibly  cai^tured  by  our  forces,  advised  that  their 
representations  to  the  effect  that  they  had  joined  the  enemy 
to  escai)e  cruel  treatment  as  prisoners  of  war,  should  not  be 
allowed  to  weigh  in  their  favor,  but  that  they  should  be 
brought  to  trial  for  the  crime  of  desertion  to  the  enemy. 
XYI,  136. 

See  order,  I  §  2,  4. 

PROCEEDINGS  AT  LAW  AGAINST  OFFICER,  &C. 

1.  Prior  to  the  passage  of  the  Act  of  June  22,  1870,  c.  150, 
"  to  establish  the  Department  of  Justice," — (see  the  provis- 
ions of  sees.  11,  IG  and  17  of  the  same,  as  now  incorporated 
in  Sees.  189,  361,  363,  &c.,  Rev.  Sts.,)  the  head  of  an  exec- 
utive department  was  held  to  be  authorized,  under  the  gen- 
eral i)rovision  on  the  subject  of  the  Act  of  Feb.  26,  1853,  to 
retain  such  counsel  and  avail  himself  of  such  professional 
advice  as  he  might  deem  expedient,  and  upon  such  terms  as 
might  be  agreed  upon  as  reasonable  and  proper.  Under  this 
provision, — in  many  cases  arising  during  the  late  war  and 
subsequently, — counsel  were  employed  directly  by  the  Secre- 
tary of  War,  or  authorized  by  him  to  be  employed,  to  defend 
officers,  soldiers,  and  in  some  cases  civilians  serving  with  the 

JEespublica  r.  McCarthy,  2  Dallas,  86;  United  States  v. 
Tigol,  Id.  S4:(j.  And  comi^are  United  States  v.  Griner,  4 
Phiiad.  3'J{jj  401. 


396        PROCEEDINGS   AT   LAW  AGAINST   OFFICER,  &C. 

army,  in  suits  and  prosecutions  instituted  against  tbem,  both 
in  State  and  United  States  courts,  for  arrests  made  and  acts 
done  in  the  performance  of  duty  under  orders.  In  such  cases, 
where  the  iDarty  was  shown  to  have  acted  within  the  scope  of 
his  a^uthority,  or  in  the  honest  discharge  of  his  duty  under 
the  orders  of  a  proper  superior,  (and,  in  cases  of  arrest,  upon 
probable  cause  and  without  undue  violence,)  it  was  usually 
recommended  by  the  Judge  Advocate  General  that  his  de- 
fence be  assumed  by  the  United  States,  through  the  U.  S. 
District  Attorney,  or  some  other  counsel  retained  by  the  Sec- 
retary of  War  or  authorized  to  be  employed  by  himself, — 
with  the  further  suggestion  that  the  counsel  be  instructed  to 
remove  the  case,  when  commenced  in  a  State  court,  to  a  court 
of  the  United  States,  if  practicable  under  the  existing  statute 
law.  Where  the  party  was  shown  to  have  exceeded  his  au- 
thority, or  to  have  been  actuated  by  personal  hostility,  or  to 
have  disregarded  the  directions  of  par.  1461  of  the  Army 
Regulations  and  not  reported  the  case  with  sufficient  i^rompti- 
tude,  his  api^lication  for  counsel  was  commonly  recommended 
to  be  denied.  I,  348;  II,  16;  III,  105  ;  VII,  45;  VIII,  51, 
108,  130;  X,  576;  XI,  201;  XIII,  509;  XVI,  565;  XVIII, 
290;  XXI,  197;  XXIII,  121;  XXIV,  135;  XXVI,  248,  521, 
536 ;  XXIX,  458  ;  XXX,  83 ;  XXXIV,  65.  In  some  few 
cases  where  judgments  small  in  amount  were  obtained  against 
officers  on  account  of  acts  performed  in  the  conscientious  dis- 
charge of  i^ublic  duty,  it  was  recommended  that,  instead  of 
requiring  the  parties  to  seek  relief  from  Congress,  the  amounts 
be  defrayed  out  of  the  contingent  fund  of  the  W^ar  Depart- 
ment.    II,  16 ;  XXVI,  536 ;  XXXVII,  384. 

2.  But,  by  the  Act  of  1870,  above  indicated,  the  whole  mat- 
ter of  the  employment  of  counsel  in  cases  of  a  public  nature, 
and  the  settlement  of  their  compensation,  has  been  taken 
from  the  chiefs  of  the  other  executive  departments  and  trans- 
ferred to  the  Attorney  General.  Sec.  189,  Eev.  Sts.,  (derived 
from  Sec.  17  of  said  Act,)  provides  generally  that — "  Xo  head 
of  a  department  shall  employ  attorneys  or  counsel  at  the  ex- 
pense of  the  United  States ;  but  when  in  need  of  counsel  or 
advice  shall  call  upon  the  Department  of  Justice,  the  officers 
of  which  shall  attend  to  the  same."  The  subject  is  regulated 
in  detail  by  Sec.  356  to  367,  Rev.  Sts. ;  and  now  when  an  offi- 
cer or  soldier  gives  notice,  as  required  by  par.  1461,  Army 
Regulations,  of  a  suit  or  i^rosecution  commenced  against  him 


PEOCEEDINGS  AT   LAW  AGAINST    OFFICER,  S.'C.  397 

for  an  act  done  in  the  due  performance  of  a  military  duty, 
and  applies  to  be  defended  at  tlie  expense  of  the  United 
States,  the  Secretary  of  War,  if  he  deems  the  case  to  be  one 
iu  which  snch  action  will  be  just  and  expedient,  will  refer  the 
papers  to  the  Attorney  General  for  the  proper  action.  The 
action  of  that  official  will  in  general  i)robably  be  mainly  de- 
termined by  the  consideration  whether  the  United  States  is 
sufficiently  ^Hntercsted^''  in  the  case,  (see  Sees.  3G1,  3GG,  Eev. 
Sts.,)  to  justify  the  government  in  assuming  the  expense  of 
its  defence.    XXXIX,  310;  XXXVIII,  09. 

3.  In  a  case  in  which,  in  1873,  a  judgment  was  obtained  in 
a  Territorial  Court  against  two  officers,  for  an  act  performed 
in  good  faith  and  in  the  zealous  and  conscientious  discharge 
of  what  was  believed  to  be  a  i)ublic  duty  devolved  upon  them 
by  an  order  of  the  department  commander,  and  this  judgment 
was  subsequently,  (in  1877,)  affirmed  by  the  Suj^reme  Court 
of  the  United  States, — the  officers  having  been  defended  by 
counsel  assigned  to  defend  them  by  the  Department  of  Jus- 
tice,— advised  that,  notwithstanding  the  fact  that  their  act 
had  been  thus  determined  to  have  been  illegal,  an  application 
made  by  them  to  Congress  for  an  appropriation  to  defray  the 
amount  of  the  judgment,  would  properly  be  favored  by  the 
Secretary  of  War.  ^XLI,  433. 

4.  By  the  Acts  of  March  3,  18G3,  c.  81,  s.  4 ;  May  11,  18GG, 
c.  80,  s.  1;  and  March  2,  18G7,  c.  155,  the  order  or  authority 
of  the  President  is  made  a  defence  in  any  court  of  the  United 
States  or  of  the  States,  to  any  prosecution  or  suit  instituted 
against  an  officer  or  soldier  of  the  army,  for  an  arrest,  tres- 
pass, or  other  act  made  or  done  by  such  authority,  during  the 
late  war.  Under  these  Statutes  it  would  appear  that  an  offi- 
cer or  soldier  could  not  be  made  liable  to  punishment  or 
damages  for  any  legitimate  act  j^erformed  during  the  war  in 
the  line  of  his  duty  or  under  the  orders  of  a  proper  sui^erior: 
otherwise,  however,  as  to  injuries  or  Avrongs  done  in  the  ab- 
sence of  legal  orders,  or  on  the  personal  responsibility  of  the 
individual.!     XXX,  4G2. 

!  See,  as  illustrating  this  subject  the  recent  decision  of  the 
Supreme  Court  in  Beard  v.  Burts,  5  Otto,  434. 

In  the  case  of  In  re  Murphy,  AVoolworth,  141,  it  was  held 
by  Justice  Miller  that  the  Act  of  18G7  was  ex  post  facto  and 
nnconstitutional,  in  so  far  as  it  assumed  to  validate  punisli- 
ments  imposed  by  military  courts  which  would  otherwise  be 
invalid. 


398  .'  PROFESSOR— PROMOTION. 


PROFESSOR  OF  THE  MILITARY  ACADEMY. 

Sec.  1330,  Kev.  Sts.  provides  that — "each  of  the  professors 
of  the  Military  Academy  whose  service  at  the  Academy  ex- 
ceeds ten  years  shall  have  the  pay  aud  allowances  of  colonel." 
Sec.  4  of  the  Army  Approi^riation  Act  of  June  23, 1870,  amends 
this  section  by  inserting,  after  the  word  ''  service,"  the  words — 
"as  professor."  Held  that  professors  who,  at  the  passage  of 
the  last  statute,  were  being  i^aid  as  colonels  because  of  hav- 
hig  served  at  the  Academy  ten  years,  but  who  had  not  yet 
served  there  as  professors  for  that  period,  could  not  legally 
continue  to  be  so  paid,  but  were  entitled  to  be  paid  as  lieu- 
tenant colonels  only  until  they  had  completed  the  term  of 
special  service  contemplated  by  the  Act  of  1879.     XLII,  375. 


PROMOTION. 

1.  Par.  19,  Army  Eegulations,  states  tlie  general  rule  in 
regard  to  promotion  in  the  Army,  as  follows : — "All  vacancies 
in  established  regiments  and  corps,  to  the  rank  of  colonel, 
shall  be  tilled  by  i^romotion  according  to  seniority."  Thus  a 
senior  first  lieutenant,  upon  a  vacancy  occurring  in  the  grade 
of  cax^tain  in  his  regiment,  is  entitled,  (if  not  disabled  or  in- 
comi^etent,)  to  be  promoted  thereto.  But  where,  in  a  case  of 
such  a  vacancy,  a  civilian,  (a  dismissed  officer,)  was  nominated 
(illegally,  i.  e.,  without  authority  of  Congress,)  to  the  captaincy 
in  the  stead  of  the  senior  first  lieutenant,  but  was  thereupon 
confirmed  by  the  Senate  and  commissioned,  Jield  that  the  lieu- 
tenant was  without  remedy  except  such  as  he  might  obtain 
by  application  to  Congress.    XXIX,  47. 

2.  Par.  20  of  the  Army  Pegulations  declares  that — "  Pro- 
motions to  the  rank  of  Captain  shall  be  made  regimentally." 
Section  1204,  Eev.  Sts.,  provides  that — "Promotions  in  the 
line  shall  be  made  through  the  whole  Army,  in  its  several 
lines  of  artillery,  cavalry,  and  infantry  respectively."  Held 
that  this  statute  simply  means  that  promotions  shall  be  made 
within  the  branches  of  the  service  of  the  respective  ofiicers, 
i.  e.  that  infantry  officers — for  example — shall  be  promoted  in 
the  infantry  arm,  and  not  out  of  that  arm  and  into  another 
arm  J  and  that  it  does  not  modify  the  rule  laid  down  in  the 


PROSECUTOR.  399 

Eegulation  but  is  declaratory  of  the  same.  Sec.  1204  is  in- 
deed not  ne^Y  law,  but  originates  in  a  similar  provision  of 
s.  5,  c.  108,  Act  of  June  20,  1812,  viz.:  ''From  and  after  the 
passage  of  this  Act,  the  promotions  shall  be  made  through 
the  lines  of  artillerists,  light  artillery,  dragoons,  riflemen  and 
infantry,  respectively,  according  to  established  rule.''''  The  es- 
tablished rule  was  that  contained  in  a  regulation  of  May,  1801, 
which  xH-escribed,  among  other  things,  that — "Promotions  to 
the  rank  of  Cai^tain  shall  be  made  regimentally " — precisely 
the  language  retained  in  the  existing  regulation.^  Of  this 
regulation,  therefore,  Sec.  1204  is  declaratory-  in  the  same 
manner  as  the  Act  of  1812  was  declaratory  of  the  original 
regulation  of  1801.     XXXYII,  425. 

3.  The  Act  of  June  18,  1878,  sec.  13,  in  i^rohibiting  for  a 
time  i)romotions  and  api)ointments  in  the  army,  added  the 
jjroviso — "That  this  limitation  shall  not  apply  to  the  line  of 
the  army  below  the  rank  of  Captain."  Held  that  the  effect 
of  this  provision  was  to  except  subalterns  from  the  general 
rule  established  by  the  statute,  and  that  the  promotion  of  a 
first  lieutenant  to  a  caj^taincy  during  the  pendency  of  the  i)ro- 
hibition  was  therefore  legal.     XLI,  400. 

4.  An  officer  who  is  senior  in  his  grade  in  his  regiment  is 
ineligible,  while  under  a  legal  sentence  of  suspension  from 
rank,  to  promotion  to  a  vacancy  occurring  in  a  liigher  grade 
pending  the  term  of  his  suspension.  Upon  such  vacancy,  the 
next  senior  officer  becomes  entitled  to  the  promotion  in  his 
stead.    XXXIII,  GO. 

See  APPOINT^IENT  $  7. 

ASSISTANT  SURGEON  $  1. 
PARDON  ^  7. 
SUSPENSION  ^  3. 


PROSECUTOR. 

Other  than  the  judge  advocate,  who  by  the  90th  Article  of 
War  is  "required  to  prosecute  in  the  name  of  the  United 
States,"  our  military  law  and  practice  recognize  no  official 
prosecutor.  The  party  who  is  in  fact  the  accuser  or  the  pros- 
ecuting witness,  is,  in  important  cases,  not  unfrequently  per- 
mitted by  the  court  to  remain  in  the  court  room  and  advise 


See  Xiy  Opins.  of  Attys.  Gen.  164. 


400  PROTEST — PUBLIC    PROPERTY. 

with  tlie  judge  advocate  during  the  trial,  if  the  latter  requests 
it;  and  in  some  cases  he  has  been  allowed  to  be  accompanied 
by  his  own  counsel.  If  such  i^arty  is  to  testify,  he  should 
ordinarily  be  the  first  witness  examined:  this  course,  how- 
ever, is  not  invariable.     II,  1 ;  XXIX,  34. 

PROTEST. 

Where  the  majority  of  the  members  of  a  court-martial  have 
come  to  a  decision  upon  any  question  raised  in  the  course  of 
the  proceedings,  or  upon  the  finding  or  sentence,  no  individ- 
ual of  the  minority,  whether  the  president  or  other  member, 
is  entitled  to  have  a  protest  made  by  himself  against  such 
decision  entered  upon  the  record.  The  conclusions  of  the 
court,  (except  in  cases  of  death  sentences,  where  a  concur- 
rence of  two- thirds  is  required,)  are  to  be  determined  invari- 
ably by  the  vote  of  the  majority  of  its  members,  and  it  is 
much  less  important  that  individual  members  should  have  an 
opportunity  of  publishing  their  personal  convictions,  than 
that  the  action  of  the  court  should  appear  ui>on  the  formal 
record  as  that  of  the  aggregate  body,  and  should  carry  weight 
and  have  effect  as  such.^  XI,  203;  XXV,  542.  Xor  can  a 
protest,  (against  the  finding  or  otherwise,)  by  a  minority  of 
the  members,  be  api)ended  to  the  record,  on  a  separate 
paper.     XXXVI,  264. 


PUBLICATIONS  BY  OFFICERS. 

See  sixty  SECOND  ARTICLE  ^  5. 
STATEMENT  §  5. 


PUBLIC  PROPERTY— DISPOSITION  OF,  &C. 

1.  The  Constitution — Art.  IV,  Sec.  3  §  2 — provides  that : 
"  The  Congress  shall  have  power  to  dispose  of,  and  make  all 
needful  rules  and  regulations  respecting,  the  territory  or  other 
property  belonging  to  the  United  States."  The  scope  of  this 
provision  is  most  comprehensive  5  the  authority  conferred 
thereby  upon  the  legislative  branch  of  the  government  being 

^  See  Simmons  §  409  j  Hough,  (Precedents)  703,  note  4. 


PUBLIC   PROPERTY — DISPOSITION   OF,  &C.  401 

held  to  extend  from  the  formation  of  a  territorial  government 
to  the  matter  of  the  sale  of  a  small  amount  of  personalty. 
That  neither  land  nor  any  interest  in  land  of  the  United 
States  can  be  sold  or  otherwise  disposed  of  by  the  head  of  an 
executive  department  or  other  executive  ofQcial  or  by  a  mlli- 
itary  officer^  without  the  authority  of  Congress,  is  settled 
law.^  YII,  404;  XXIII,  135;  XXX,  005;  XXXV,  307; 
XXXYI,  G73 ;  XLII,  283. 

In  the  absence  of  such  authority,  the  lands  of  the  United 
States,,  whether  held  by  original  i)roi)rietorship,  or  acquired 
by  purchase  or  gift,  or  by  conquest,  cannot,  even  for  a  ijurely 
benevolent  or  religious  purpose,  be  given  away  any  more 
than  they  can  be  transferred  for  a  valuable  consideration. 
XXXIX,  337.  Nor,  (without  such  authority,)  can  they  be 
conveyed  temporarily  by  lease.,  whether  for  a  short  or  long 
term.2     XXXII,  2,  042,  XXXIX,  330;  XLII,  230. 

2.  Xor,  without  authority  from  Congress,  can  an  executive 
department  or  officer  convey  away  any  usufructuary  interest 
in  land  of  the  United  States.  Thus  it  has  been  repeatedly 
held  by  the  Judge  Advocate  General  that  the  Secretary  of 
War,  (or  a  military  commander,)  was  not  empowered,  of  his 

^  This  fundamental  rule  of  our  i:)ublic  law  is  exi^ressed  by 
Attorney  General  Hoar,  (XIII  Oi)ins.  40,)  as  follows :  ''  I  am 
clearly  of  opinion  that  the  Secretary  of  War  cannot  convey 
to  any  i^erson  any  interest  in  land  belonging  to  the  United 
States,  except  in  pursuance  of  an  Act  of  Congress  expressly 
or  impliedly  authorizing  him  to  do  so."  And  see  United 
States  v.  Xichols,  1  Paine,  040,  (cited  infra  ;)  Seabury  v.  Field, 
McAllister,  1 ;  United  States  v.  Hare,  4  Sawyer,  053,  009. 

^  See  Friedman  V.  Goodwin,  1  McAllister,  148,  where  a  lease 
made,  by  the  post  commander  at  San  Francisco,  of  a  part  of 
a  "  government  reserve,"  though  approved  by  the  military 
governor  of  the  then  Territory,  and  also  by  the  Secretary  of 
the  Interior,  was  held  void  because  not  authorized  by  Con- 
gress. The  Court  declares  the  "utter  inipotency  of  any 
attempt  by  an  officer  of  the  government  to  alien  -auj  land, 
the  property  of  the  United  States,  without  the  authority  of 
an  act  of  Congress";  adding  that  "the  President  with  the 
heads  of  the  departments  combined  "  could  not  effect  such  an 
object.  And  see  IV  Opins.  of  Attys.  Gen.  480;  IX  Id  470; 
XIII  Id.  40;  United  States  v.  Hare,  4  Sawyer,  070-1.  In 
the  last  case  the  Court  say :  "  The  Secretary  of  the  Treasury 
cannot  execute  or  approve  of  a  lease  of  any  property  belong- 
ing to  the  United  States  without  special  authority  of  law." 
20  D 


402  PUBLIC   PROPERTY 

own  authority,  to  grant  a  right  of  way  over  a  military  reser- 
vation to  a  railroad  company  or  other  corporation,  (XXXI, 
237;  XXXiy,  197,  470;  XXXY,  457,  554;  XXXVI,  207;) 
and  in  jiumerous  statutory  euactments  such  a  right  has  been 
expressly  given  by  Congress  as  the  only  authority  competent 
for  the  puri^ose. 

And  such  rights  when  given  can  be  exercised  only  within 
the  terms  of  the  grant.  Thus  where  by  an  Act  of  Congress 
there  was  granted  to  a  railroad  company  a  limited  and  defined 
right  of  way  across  a  military  reservation,  (occupied  by  a 
military  i)ost,)  held  that  the  company  was  authorized  simply 
to  construct  a  track  or  roadway,  and  was  not  empowered  to 
put  up  depots,  stock  yards,  cattle  pens  or  other  erections 
upon  the  land,  or  to  appropriate  land  otherwise  than  for  the 
roadway.^     XXXV,  457  ;  XLI,  214;  XLII,  187. 

So  held  that  the  Secretary  of  War  could  not,  of  his  own 
authority,  grant,  in  consideration  of  the  payment  of  toll  to 
the  United  States,  a  right  of  way  over  a  Bridge  belonging  to 
the  United  States.  XXXI,  136;  XXXVIII,  41.  So  held 
that  the  Secretary  could  not  legally  grant  to  a  comj)any  or 
individual  the  right  to  erect  and  maintain  for  an  indefinite 
period  a  hotel  on  the  military  reservation  at  Sandy  Hook.^ 
XXXVIII,  351.  So  held  that  the  Secretary  would  not  be 
authorized  to  transfer  a  lot  belonging  to  the  United  States 
in  Washington  to  the  Commissioners  of  the  District  of  Co- 
lumbia for  the  erection  of  a  hospital.  XXXVI,  GGS.  So  held 
that  neither  the  Secretary  of  War  nor  a  department  com- 
mander could  grant  to  an  individual  or  individuals  the  exclu- 
sive right  to  use  for  an  indefinite  i>eriod  certain  water  i^ower 
belonging  to  the  United  States,  (XLI,  136 ;)  nor  the  exclusive 
right  to  mine  the  soil  of  a  military  reservation  for  a  certain 
term  of  years,  (XLI,  37 ;)  nor  a  similar  right  to  make  and 

^  See  this  oj^inion  affirmed  by  the  Attorney  General  in  XIV 
Opins.  135. 

^  See  confirmatory  opinion  of  the  Attorney  General  of 
November  22,  1878,  (XVI  Opins.  — .)  In  this  case  there  was 
the  further  objection  that  the  State  of  Xew  Jersey,  in  ceding 
to  the  United  States  jurisdiction  over  the  premises,  by  deed 
of  March  10,  1846,  had  expressly  declared  that  the  grant  was 
^'for  military  purposes;"  adding — ''and  the  said  United 
States  shall  retain  such  jurisdiction  so  long  as  the  said  tract 
shall  be  applied  to  the  military  or  i^ublic  puri)oses  of  the  said 
United  States,  and  no  longer." 


PUBLIC  PKOPERTY— DISPOSITION  OF,  &C.  403 

maintain  for  an  indefinite  period  ditches  tbrougli  a  portion 
of  such  a  reservation  for  the  purpose  of  irrigating  the  lands 
of  private  parties,  (XXXVIII,  232;)  nor  the  right  annually 
to  enter  upon  and  occupy  a  military  reservation  and  cut  and 
possess  the  hay  crop  growing  thereon,^  (XLII,  128;)  nor  the 
right  permanently  or  indefinitely  to  occupy  and  use  a  portion 
of  a  reservation  for  a  burying  ground.     XXXIX,  337. 

3.  Reldj  however,  that  a  distinction  was  to  be  observed 
between  a  grant  of  a  usufructuary  interest  in  land  and  a 
revocable  license^  not  involving  a  transfer  of  such  an  in- 
terest.2  XXXIII,  G57;  XXXIV,  196;  XLIII,  278.  Thus 
held  that  the  Secretary  of  War  would  be  authorized  to  per- 
mit a  telegraph  company  to  erect  i)osts  upon  a  military 
reservation  and  attach  to  the  same  telegraph  wires,  subject 
to  their  being  removed  at  the  will  of  the  government  if  found 
to  interfere  with  the  purx>oses  for  which  the  reservation  was 
estabUshed.  XXXVIII,  591.  So  held  that  a  municipal  cor- 
j)oration  might  legally  be  j^ermitted  by  the  Secretary  of  War 
to  lay  water  pipes  in  the  soil  of  the  arsenal  grounds  at  Spring- 
field, Mass.,  the  same  being  equally  for  the  benefit  of  the 
military  authorities  and  the  citizens  and  subject  to  removal 
at  the  will  of  the  government.  XXXVI,  653.  And  held  that 
a  post  trader  might  legally  be  licensed  by  the  Secretary  of 
War  to  erect  the  buildings  necessary  for  his  business  upon 
the  land  of  the  post  for  which  he  was  appointed.^  XXXIII, 
453,  XXXV,  78.  But  held  that  the  Secretary  of  War  was 
not  empowered  to  accede  to  the  application  of  an  individual 
to  establish  a  ferry  across  a  river  within  the  limits  of  a  mili- 
tary reservation,  where  what  was  asked  was  not  a  mere 
license  revocable  at  the  will  of  the  Secretary  but  a  permanent 
franchise  and  grant  of  an  exclusive  usufructuary  interest  in 
the  premises,  including  even  the  right  to  charge  tolls  to  the 
United  States.  XXXVIII,  m^;  XXXIX,  457;  XLII,  454. 
And  similarly  held  in  a  case  of  an  application  to  be  permitted 

^  A  fortiori  in  regard  to  growing  timber.  See  Spencer  v. 
United  States,  10  Ct.  01.  255. 

^  See  this  distinction  recognized  in  opinions  of  the  Attorney 
General  of  October  1  and  Xovember  22, 1878,  (XVI  Opins.  — ',) 
in  the  former  of  which  it  was  held  that  the  Secretary  of  the 
Xavy  was  not  empowered  to  authorize  the  City  of  Chelsea, 
Mass.,  to  continue  one  of  its  main  sewers  through  the  grounds 
of  the  U.  S.  Xaval  Hospital. 

2  See  XIV  Opins.  of  Attys.  Gen.  125. 


404  PUBLIC   PEOPEKTY- 

to  erect  and  maintain  a  permanent  bridge  across  a  river  form- 
ing a  boundary  of  a  military  reservation,  one  end  of  whicli 
was  to  be  built  ux)on  tlie  soil  of  the  reservation  ;  the  applica- 
tion contemplating  not  a  mere  license  revocable  at  the  will 
of  the  government,  but  a  permanent  right  of  jjroperty  in  the 
bridge  invohang  an  easement  in  the  land.     XLIII,  167. 

4.  The  provision  of  the  Constitution  in  regard  to  the  dis- 
position of  public  property  applies  to  personalty  equally  as  to 
realty.  Thus  no  executive  department  or  ofi&cer  can  be  em- 
powered, except  by  the  authority  of  Congress,  to  dispose  of 
personal  property  ofthe  United  States.^  XXX,  605  j  XXXVIII, 
11.  So  lield  that,  in  the  absence  of  such  authority,  a  mili- 
tary commander  could  not  legally  dispose  of  temporary  build- 
ings— not  "fixtures" — erected  \\]}on  a  military  reservation. 
XXXVII,  222  ;  XLI,  436,  498.  So  held  that  the  Secretary  of 
War  would  not  be  authorized,  in  the  absence  of  enabling  leg- 
islation, to  sell  or  negotiate  the  bonds  or  i^romissory  notes 
made  to  the  United  States  by  certain  railroad  companies,  in 
consideration  of  rolling  stock,  &c.,  sold  and  transferred  to 
the  same.  XXX,  605.  And  similarly  held  as  to  the  author- 
ity of  the  Secretary  to  dispose  of  articles  of  inferior  \  alue,^ 

^  The  leading  case  on  this  point  is  United  States  v.  Xichols, 
1  Paine,  U.  S.  Circ.  Ct.  E.  646,  in  which  it  was  held  that  a 
sale  or  loan,  by  the  commandant  of  an  arsenal,  of  a  quantity 
of  lead  belonging  to  the  United  States,  was  illegal  and  in- 
valid. The  Court  say :  '^  The  Constitution  declares  that '  Con- 
gress shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  i^roj)- 
erty  belonging  to  the  United  States.'  Xo  i^ublic  property 
can  therefore  be  disposed  of  without  the  authority-  of  law, 
either  by  an  express  act  of  Congress  for  that  purpose,  or  by 
giving  the  authority  to  some  department  or  subordinate 
agent.  Xo  law  has  been  shown  authorizing  the  sale  of  this 
lead ;  nor  is  any  such  authority  to  be  inferred  from  the  gen- 
eral power  vested  in  any  of  the  departments  of  the  govern- 
ment. The  power,  if  lodged  anywhere,  would  seem  most  ap- 
propriately to  belong  to  the  War  Department.  But  there  is- 
no  such  express  or  imi^lied  power  in  that  department  to  sell 
the  x>ublic  property  put  under  its  mauagement."  And  see 
the  same  principle  recognized  in  a  recent  opinion  of  the  At- 
torney General  of  March  27,  1S80,  (XVI  Opms.  — .)  in  which 
it  is  held  that  the  Secretary  of  .War  was  not  empowered  to 
sell  arms  to  a  State,  in  the  absence  of  authority  from  Con- 
gress. 

-  Compare  VIII  Opins  of  Attys.  Gen.  280. 


PUBLIC   PROPERTY — DISPOSITION   OF,  &C.  405 

not  impliedly  authorized  to  be  sold  by  Sec.  13 IG,  Rev.  Sts. 
[See  §  13,  infra.]  XXXVIII,  G14.  And  Md  that  the  fact 
thaf  certain  valuable  public  i^roperty  was  perishable  and  lia- 
ble to  waste  was  not  legally  sufficient  to  justify  the  sale  in 
the  absence  of  statutory  authority.  XXVIII,  479.  Held  that 
the  ''  Cavalry  Tactics,"  a  work  prepared  under  the  orders  of 
the  Secretary  of  War  by  a  board  of  officers,  was  the  property 
of  the  United  States,  and  therefore  could  not,  without  the 
authority  of  Congress,  be  disposed  of  to  a  bookseller  with  a 
view  to  its  publication  and  sale  by  him  on  his  private  ac- 
count.    XXXV,  264. 

5.  In  the  absence  of  statutory  authority,  land  can  not  be 
purchased /or  the  United  States  with  any  more  legality  than 
land  of  the  United  States  can  be  sold  or  disposed  of.  By  a 
provision  of  an  Act  of  May  1,  1820,  now  contained  in  Sec. 
3736,  Eev.  Sts.,  it  is  declared  that — "Xo  land  shall  be  pur- 
chased on  account  of  the  United  States  except  under  a  law 
authorizing  such  purchase."  Held  that  the  term  "purchase" 
was  to  be  understood  in  its  legal  sense,  as  embracing  any 
mode  of  acquiring  property  other  than  by  descent;  ^  and  that 
therefore  the  Secretary  of  War  would  not  be  empowered  to 
accej)t  a  gift  of  land  or  interest  in  land,  for  any  use  or  purpose, 
independently  of  statutory  authority .2  XXXII,  19 ;  XXXVIII, 
175;  XXXIX,  313;  XLIV,  9.  And  similarly  held  as  to  the 
construction  of  the  same  word,  ("purchase,")  as  employed  in 

'  See  VII  Opins.  of  Attys.  Gen.  114,  121,  Ex  xmrte  Hebard, 
4  Dillon,  384. 

-  See  this  opinion  concurred  in  by  an  opinion  of  the  Attor- 
ney General  of  January  7,  1880,  (XVI  Opins.  — .)  As  stat- 
utes specially  authorizing  the  acceptance  of  donations  of  land, 
note  the  early  Acts  of  March  20  and  May  9,  1794,  and,  later, 
the  Acts  of'^Feb.  18,  1867;  March  3,  1875;  June  23,  1879. 
That  authority,  however,  to  purchase,  and,  a  fortiori  perhaps, 
to  accept  a  gift  of,  the  necessary  land,  may  be  implied  from 
an  Appropriation  Act  granting  a  sum  of  money  for  a  public 
work  requiring  for  its  construction  the  occupation  and  use  of 
certain  land  of  an  individual  or  corporation — see  opinions  of 
the  Attorney  General  of  March  27, 1877,  (XV  Opins.  — ,)  and 
August  9,  1878,  and  October  4,  1879,  (XVI  Opins.  — .)  In 
the  opinion  of  August  9, 1878,  it  was  held  that  where  no  stat- 
utory authority  whatever  existed  for  a(?cepting  a  gift  of  land, 
a  head  of  Department  would  not  be  justified  in  accepting  the 
same  on  the  condition  that  Congress  ratify  the  acceptance 
and  in  anticii^ation  of  such  ratification. 


406 

Sec.  355,  llev.  Sts.,  and  advised  that  au  api)ropriation  of  pub- 
lic iBOuey  could  not  legally  be  expended  for  the  erection  of  a 
public  building  upon  land  donated  to  the  United  States,  until 
the  Attorney  General  had  passed  the  title,  and  the  legislature 
of  the  State  in  which  the  land  was  situated  had  given  its  con- 
sent to  the  grant.'     XXXII,  Id;  XXXIX,  313;  XLII,  452. 

6.  The  statutory  authority  relied  uj^on  for  the  purchase  of 
land  by  a  head  of  a  department  should  be  clear  and  indispu- 
table. Thus  held  that  authority  to  purchase  additional  land 
for  the  interment  of  soldiers  could  not  be  derived  from  the  gen- 
eral provision  of  the  annual  appropriation  Act,  appropriat- 
ing a  certain  sum  for  maintaining  the  existing  National  Cem- 
eteries.    XLI,  50. 

7.  A  statute  conferring  a  specific  authority  to  purchase 
certain  land  should,  in  the  exercise  of  the  authority,  be 
strictly  construed.  Thus  where  a  statute  authorized  the  Sec- 
retary of  War  to  purchase,  for  a  certain  stated  sum,  a  certain 
described  tract  containing  a  specified  number  of  acres,  held 
that  the  Act  did  not  invest  him  with  discretion  to  purchase  a 
portion  only  of  such  tract.     XXXYIII,  ,346. 

8.  Authority  to  acquire  land  in  a  State,  by  the  exercise  of 
the  right  of  eminent  domain,  whether  by  proceedings  for  con- 
demnation in  the  U.  S.  Circuit  Court  or  in  the  courts  of  the 
State,  ^  can  be  vested  in  an  executive  official  of  the  United 
States,  only  by  express  legislation  of  Congress.     XLII,  63. 

9.  A  State  can  have  no  authority  to  appropriate  land  in- 
cluded in  a  military  reservation  of  the  United  States  to  the 
I)uri>oses  of  a  right  of  way  for  a  railroad.^  Such  a  right  of 
way  granted  by  a  State  legislature,  cannot  be  recognized  as 
legal  by  the  United  States.    XXXI,  249. 

^  But  under  the  implied  authority  contained  in  Sec.  1838, 
Kev.  Sts.,  lands  required  as  sites  for  forts,  arsenals,  &c.,  or 
needful  i)ublic  buildings,  may  be  purchased,  (or  acquired  by 
gift,)  without  the  consent  of  the  State,  though,  in  the  absence 
of  such  consent,  ijublic  money  cannot,  in  view  of  the  provis- 
ions of  Sec.  355,  legally  be  expended  upon  the  huildings,  X 
Opins.  of  Attys.  Gen.  35;  XV  Id.  — ,  (Opinion  of  March  27, 
1877. ) 

'  See  Kohl  v.  United  States,  1  Otto,  367. 

^  See  United  States  v.  E.  R.  Bridge  Co.,  6  McLean,  517  ; 
Ills.  Central  R.  R.  Co.  i\  United  States,  20  Law  Rep.  630 ;  VI 
Opins.  of  Attys.  Gen.  670 ;  also  opinion  of  the  Attorney  Gen- 
eral of  August  2,  1878,  (XVI  Opins.  — .) 


\ 


A 


407 

10.  Where  conflicting  claims,  not  clearly  groundless,  were 
made  by  several  persons  to  the  title  to  a  portion  of  a  military 
reservation,  advised  that  the  Secretary-  do  not  attempt  to  pass 
upon  the  questions  involved,  but  refer  the  parties  to  the  courts 
for  their  legal  remedies.     XXX,  72.     [See  Claims  §  4.] 

11.  A  statute  may  grant  title,  and  a  statutory  grant  is 
equivalent  to  a  patent — is,  in  fact,  in  the  words  of  Attorney 
General  Bates,  "the  highest  and  strongest  form  of  title  known 
to  our  hiw."  ^  Thus  where  a  statute  vests  in  terms  in  an  in- 
dividual or  cori)oration  the  title  of  the  United  States  to  cer- 
tain land  or  other  public  property,  in  occui)ation  or  charge  of 
the  military  authorities,  no  deed  or  conveyance  from  the  Sec- 
retary of  War  is  necessary ;  all  that  is  required  being  that 
the  proper  military  commander  or  officer  relinquish  or  turn 
over  the  premises  or  i^roi^erty  to  the  grantee.  XXX YII, 
596 ;  XLI,  28.  And  where  the  grant  by  the  statute  is  made 
upon  a  condition  precedent,  the  title,  upon  the  condition  being 
performed  by  the  party,  becomes  complete  without  any  writ- 
ten deed.  Thus  where  an  Act  of  Congress  granted  to  a  rail- 
road company'  certain  hind  for  buildings  and  a  right  of  way 
within  the  limits  of  a  military  reservation,  upon  the  company's 
filing  with  the  Secretary  of  the  Interior  a  maj)  of  its  route  to 
be  approved  by  him,  and  also  locating,  under  the  direction  of 
the  Secretary  of  War,  the  land  required  for  its  buildings  and 
roadway;  Jield  that,  upon  these  conditions  being  duly  per- 
formed, a  comi)lete  title  vested  in  the  company.     XXXYI,  130. 

12.  Held  that  the  principle  that  buildings  erected  on  the 
land  of  another  without  his  consent  become  his  property,  did 
not  apply  to  buildings  erected  by  the  United  States  on  land 
occnined  jure  belli  by  the  army  in  an  enemy's  country;  but 
that,  on  subsequently  surrendering  the  land  to  the  owner,  the 
military  authorities  might  legally  remove  and  retain  or  dis- 
l)ose  of  the  buildings.     XXXY,  56o. 

13.  Held  that  the  i:>rovision  of  Sec.  3618,  Eev.  Sts., — requir- 
ing that  "  all  proceeds  of  sales  of  old  material,  condemned 
stores,  supplies,  or  other  i^ublic  i^roperty  of  any  kind,"  shall, 
with  certain  exceptions  specified,  be  deposited  and  covered 
into  the  Treasiuy  as  miscellaneous  receipts,  and  not  withdrawn 
except  by  the  authority  of  a  statutory  appropriation, — applied 

~^I  Opins.  of  AttysrGem~49.     And  see  IX  Id.  346;  XU 
Id.  254;  Terrett  v.  Taylor,  9  Cranch,  50. 


408  PUNISHMENT — PURCHASE. 

to  the  proceeds  of  tlie  surplus  cuttings  of  material  for  cloth- 
ing manufactured  by  the  quartermaster  department  of  the 
army,  the  same  not  being  within  any  of  the  designated  excep- 
tions J  and  therefore  that  the  proceeds  of  such  cuttings  could 
not  legally  be  retained  and  used  in  the  business  of  that  depart- 
ment.   XLII,  653. 

See  ninth  ARTICLE. 

CAPTURED  PROPERTY. 
MILITARY  RESERVATION. 
NATIONAL  CEMETERY  $  2,  3,  4. 
QUITCLAIM. 
SALVAGE  §  1. 


PUNISHMENT. 

See  fourth  ARTICLE  $  3. 

SEVENTEENTH  ARTICLE  $  1. 
FIFTY  FOURTH  ARTICLE  $  5. 
FIFTY  EIGHTH  ARTICLE  $  5 
SIXTIETH  ARTICLE  $  8. 
SIXTY  SIXTH  ARTICLE. 
EIGHTY  THIRD  ARTICLE.         ^ 
EIGHTY  SIXTH  ARTICLE. 
NINETY  SEVENTH  ARTICLE. 
DISCHARGE  ^  8,  note. 
DISMISSAL,  II  $  1. 
SENTENCE  AND  PUNISHMENT. 


♦^PURCHASE." 

See  cession  OF  JURISDICTION  $  1,  note. 

PUBLIC  PROPERTY— DISPOSITION  OF,  &c.,  $  5. 


QUAETEKMASTEE  STOEES—QUORUiM.  409 


Q. 


aUARTERMASTER  STORES. 

See  claims  $  10. 

PUBLIC  PEOPERTY— DISPOSITION  OF  $  13. 
SALVAGE  $  1. 


QUARTERS. 

See  sixty  FIFTH  ARTICLE  $  1. 
ARREST,  I  §  3- 
LEAVE  OF  ABSENCE  $  L 
LOSS  OF  FILES  $  3. 

PAY  AND  ALLOWANCES  $  12,  note,  22,23,26. 
SUSPENSION  $  5. 


aUITCLAIM. 

In  view  of  the  fact  that  the  land  of  the  United  States  is 
peculiarly  subject  to  claims  of  title  and  the  assertion  of  con- 
testing interests  on  the  part  of  alleged  pre-emptors,  settlers, 
holders  of  rights  of  way  and  other  easements,  &c., — that  cor- 
poration, in  making  conveyances  of  its  real  estate  through  its 
official  representatives,  cannot  in  general  properly  be  required 
to  give  any  other  than  quitclaim  deeds,  and,  in  the  practice 
of  the  War  Department,  such  are  the  deeds  which  are  ordi- 
narily given.    XLIY,  110. 

aUORUM. 

See  SEVENTY  FIFTH  ARTICLE  $  3. 
MILITARY  COMMISSION,  I,  $  2. 
RECORD  ^  1,  d. 


410  RANK. 


E. 


RANK. 

/ 

/  1.  Where  tlie  appointment  or  commission  of  an  officer  spec- 
ifies a  particular  date  from  which  he  is  to  rank,  which  is  prior 
to  the  date  of  the  formal  execution  of  the  instrument,  it  is 
the  former  date  which  fixes  his  relative  rank  in  the  army — 
except  as  between  himself  and  an  officer  of  his  grade  whose 
appointment  or  commission  gives  rank  from  the  smiie  date 
as  does  his  own,  in  which  case  the  rule  prescribed  by  Sec.  1219, 
Eev.  Sts.,  is  to  govern.    XXIII,  439. 

2.  Under  the  existing  statute  law,  an  officer  of  the  army 
can  claim  rank  or  precedence  by  virtue  of  service  as  a  volun- 
teer officer  only  as  between  himself  and  another  officer  of  the 
same  grade  and  date  of  ai)pointment  or  commission — the  case 
l)rovided  for  in  Sec.  1219,  Eev.  Sts.  The  One  Hundred  and 
Twenty  Third  Article  of  war  is  operative  to  regulate  the  rela- 
tive rank,  &c.  of  regular  and  volunteer  officers  only  when 
serving  together  in  the  army — as  during  the  late  war,  for  ex- 
ample— as  distinctive  classes  of  commissioned  officers.^  XLI, 
238. 

3.  Held  that,  in  fixing  his  rank  in  relation  to  another  officer 
of  the  same  grade  and  date  of  commission,  under  Sec.  1219,  Eev. 
Sts.,  an  officer  was  entitled  to  have  taken  into  account  a  pe- 
riod of  service  rendered  by  him  "  as  a  commissioned  officer  of 
the  United  States  "  in  the  volunteer  force  during  the  Mexican 
war ;  the  i)ro vision  of  the  second  sentence  of  the  Section  not 

'  See,  to  a  similar  effect,  an  oi)inion  of  the  Attorney  Gene- 
ral, of  July  0,  1877,  published  in  G.  O.  51,  Hdqrs.  of  Army, 

1878. 


i 


EEC03OrE^'DATI0N.  411 

being  viewed  as  limiting  the  application  of  tlie  general  and 
comprehensive  provision  of  the  first  sentence. 

See  seventy  NINTH  ARTICLE. 
AID-DE-CAMP  $  1. 
APPOINTMENT  $  1,  2,  11. 
ASSISTANT  SURGEON  $  2. 
BREVET  RANK. 
DEFENCE  $  4. 

PAY  AND  ALLOWANCES  $  2,  note. 
RELIEF  $  2. 
SUSPENSION  $  1—10. 


EECOMMENDATION. 

1.  A  recommendation  of  the  accused  to  clemency  is  no  part 
of  the  official  record  of  the  trial,  or  of  the  proceedings  of  the 
court  as  sucli^  but  is  merely  the  personal  act  of  the  members 
who  sign  it.  It  should  not  therefore  be  incorporated  with  the 
record  proper,  but  should  be  appended  to  or  transmitted  with 
the  same  as  a  separate  and  independent  paper.    XII,  572. 

2.  Where  a  member  of  a  court-martial  who  had  joined  in  a 
recommendation  which  had  been  api)ended  to  the  record  and 
regularly  transmitted  to  the  reviewing  authority,  api)lied  to 
have  his  name,  as  subscribed  thereto,  cancelled^  on  the  ground 
that,  because  of  information  since  received,  his  opinion  of  the 
accused  had  been  reversed,  advised  that  such  a  proceeding 
would  be  exceptional  and  irregular,  and  that  the  preferable 
course  would  be  to  file  with  the  record  the  application  and 
statement  of  the  member  so  that  the  same  might  be  referred 
to  and  considered  in  connection  with  the  recommendation. 
XXXIII,  580. 

3.  It  is  of  course  always  discretionary  with  a  member  of  a 
court-martial  whether  he  will  make  or  join  in  a  recommenda- 
tion to  clemency.  Members  however  will  in  general  do  well 
to  refrain  from  subscribing  recommendations  where  the  tes- 
timony on  the  trial  as  to  the  merits  of  the  case  or  the  char- 
acter of  the  accused  fails  clearly  to  justify  a  remission  or 
mitigation  of  the  punishment.  Weak  and  ill-considered  re- 
commendations have  not  unfrequently  given  rise  to  severe 
criticism  on  the  part  of  reviewing  olticers.  Thus  in  G.  C.  M. 
0. 1)2,  Hdqrs.  of  Army,  1867,  the  Secretary  of  War  expresses 
himself  as — ''  surprised  to  find  that  any  officer  of  the  court 


412  RECORD. 

could  recommend  remission  or  commutation  of  tlie  sentence 
of  dismissal  in  a  case  where  the  conduct  of  the  officer  tried 
was  as  reprehensible  as  that  of"  the  accused.^  Members,  in 
offering  recommendations  should  be  careful  to  state  the  spe- 
cific grounds  upon  which  they  base  the  same.^  XXXIII,  418. 
4.  Members  of  a  court-martial,  desiring  to  recommend  an 
accused  to  clemency  need  not  all  sign  the  same  statement. 
There  may  be,  in  any  case,  two  or  more  separate  recommen- 
dations each  signed  by  different  members.^    XXXVII,  121. 

EECORB. 

1.  Though  courts-martial  are  not,  in  the  legal  sense,  courts 
of  recordj^  yet  it  is  clearly  contemi^lated  by  the  statute  law, 
(see  the  113th  and  114th  Articles  of  War,  taken  from  the  old 
90th  Article ;  also  the  later  i)rovision  incorporated  in  Sec. 
1199,  Eev.  Sts.,)  that  a  court  martial  shall  make  a  formal 
record  of  its  proceedings,  and  the  Army  Eegulations,  in  pars. 
891-893,  direct  as  to  the  substance  and  form  of  the  record  in 
certain  particulars.  Upon  such  basis,  the  record  of  a  court 
martial  has  come  to  be,  in  our  practice,  a  full  report  and 
recital  of  the  details  of  the  trial  in  each  case,  including,  (and 

'  In  G.  O.  36  of  1843,  the  Secretary  of  War,  Hon.  J.  M. 
Porter,  in  reviewing  a  case,  remarks  as  follows :  "  The  prac- 
tice of  the  members  of  a  court  martial  first  finding  an  offi- 
cer guilty,  and  then  recommending  him  for  clemency,  is  to  be 
deprecated.  It  is  an  endeavor,  too  frequently  made,  to  trans- 
fer the  responsibility  of  their  finding  to  the  Department  of 
War  when  it  should  rest  upon  the  court  itself."  And  see  Gr. 
O.  342,  War  Dept.,  1863 ;  G.  C.  M.  O.  27,  Id.  1871. 

2  In  G.  O.  70,  Dept.  of  Dakota,  1870,  Maj.  Gen.  Hancock, 
the  reviewing  authority,  observes  : — ''As  the  members  of  the 
Court  are  silent  with  regard  to  the  considerations  by  which 
they  were  influenced  in  making  their  recommendation  in  the 
prisoner's  behalf,  it  is  impossible  for  the  reviewing  authority 
to  determine  whether  their  reasons  for  making  the  recom- 
mendation were  sufficient  to  justify  a  mitigation  of  the  sen- 
tence. Xo  consideration  can,  therefore,  be  paid  to  it.  The 
sentence  is  approved,  and  will  be  duly  carried  into  execu- 
tion." 

^A  late  case  in  which  there  were  two  recommendations — 
one  signed  by  a  single  member — is  i)ublished  and  remarked 
ux^on  in  G.  0.  M.  O.  92,  War  Department,  1875. 

^  See  Chambers  v.  Jennings,  7  Modern,  125;  Ex  imrte  Wat- 
kins,  3  Peters,  209 ;  Wilson  v.  John,  2  Binney,  215. 


RECORD.  413 

herein  it  differs  from  a  judicial  record  in  the  civil  procedure,) 
all  the  testimony  introduced.  As  to  the  character,  effect  and 
proper  contents  of  a  record  of  a  military  court, — (the  same 
rules  being  held  to  apply  in  the  main  to  records  of  inferior 
as  to  those  of  general  courts,  XXIY,  540;  XXVII,  G47,  — ) 
the  Judge  Advocate  General  has  held  as  follows : — 

a.  That,  (in  view  of  the  requirement  of  par.  891,  Army 
Regulations,  that  ''every  court  martial  shall  keep  a  complete 
and  accurate  record  of  its  proceedings,")  the  entire  proceed- 
ings and  action  of  the  court  upon  tlie  trial  should  be  fully  set 
forth,  incknling  the  organization,  challenges  to  members,  (if 
any,)  arraignment,  pleas,  testimony  of  witnesses  and  docu- 
mentary evidence,  motions  and  objections  Avith  the  substance 
of  the  arguments — if  any — thereon,  rulings  of  the  court  on 
interlocutory  questions,  adjournments,  continuances,  closing 
addresses  or  statements,  findings  and  sentence ; — in  short 
every  part  and  feature  of  the  i)roceedings,  material  to  a  com- 
13lete  history  of  the  trial  and  to  a  correct  understanding  by 
the  reviewing  officer  both  of  the  merits  of  the  case  and  of  the 
questions  of  law  arising  in  the  course  of  the  investigation.^ 
XXXII,  453.  Where  a  sentence  is  pronounced,  the  record 
should  contain  everything  necessary  to  sustain  it  in  fact  and 
in  law.     II,  59. 

J).  That  the  record  of  each  case  tried  by  a  court  martial, — 
where  several  cases  are  tried  thereb^^, — should  be  complete 
Ijer  se,  and  as  much  an  entirety,  both  in  form  and  in  substance, 
as  if  it  were  the  onlj^  case  tried.  Each  record  should  be 
separate  and  distinct  from  every  other  record,  containing  all 
that  is  essential  to  an  original  and  independent  official  paper, 
and  so  perfected  as  to  leave  no  material  detail  to  be  supi^lied 
from  any  xn^evious  or  other  record.  As  directed  in  par.  892, 
Army  Eegulations,  ''the  proceedings  in  each  case  will  be 
made  up  separately:"  records  therefore  should  not  be 
attached  together,  but  should  be  prepared  and  transmitted  as 
disconnected  documents.  Ill,  402,  413  j  XIX,  33Gj  XXXII, 
130. 

c.  That  the  copy  of  the  convening  order,  directed  hy  par. 
892,  Army  Ivegulatious,  to  be  "  entered  on  the  record  in  each 
case,"  should  properly  be  prefixed  to  the  proceedings,  as 
constituting  the  Initial  authority  for  the  existence  and  ac- 

^  Compare  Coffin  v.  Wilbour,  7  Pick.  151. 


414  EECORD. 

tion  of  the  court.  XXXII,  190;  XXXIII,  391.  This  order 
should  of  course  be  complete,  and  should  exhibit,  by  its 
heading  and  its  subscrix^tion  that  it  has  i^roceeded  from  a 
commanding  officer  competent  to  order  the  court.  XXIII, 
636.  Where  several  cases  are  tried  by  the  same  court,  a 
separate  copy  of  the  order  should  accompany  the  record  in 
each  case:  only  to  prefix  a  single  copy  to  the  first  of  a  series 
of  records  attached  together  is  irregular  and  in  violation  of 
the  regulation  as  well  as  the  general  rule  that  every  record 
should  be  complete  in  itself  IV,  607.  Where  subsequent 
orders  have  been  issued,  adding  or  relieving  members  or  a 
judge  advocate,  or  otherwise  modifying  the  original  convening 
order,  copies  of  these  should  follow  the  original  or  be  else- 
where incorporated  in  the  record.  XIII,  384.  In  their 
absence  it  may  not  be  possible  to  determine  on  the  face  of 
the  record  whether  the  officers  who  composed  the  court  on 
the  trial  were  actually  or  legally  detailed  therefor,  or  whether 
the  prosecuting  judge  advocate,  or  the  judge  advocate  who 
authenticates  the  proceedings,  was  so  detailed.  XXI,  488. 
In  connection,  however,  with  any  order  making  a  change  in 
the  original  detail  of  members  or  substituting  a  new  judge 
advocate,  the  record  should  note  the  fact  of  the  new  member 
taking  his  seat,  or  new  judge  advocate  commencing  to  officiate, 
according  to  the  order,  on  a  certain  day.  XXIX,  604.  Where 
less  than  thirteen  members  are  detailed  in  the  original  order, 
it  has  been  usual  to  add  therein: — '^Xo  other  officers  than 
those  named  can  be  assembled  without  manifest  injury  to  the 
service."  [See  form  given  m  par.  883,  Armj^  Regulations.] 
Such  addition,  however,  is  not  required  by  Art.  75,  and  is 
not  essential.  XI,  208.  [See  Seventy  Fifth  Article  §  8.] 
d.  That  the  record  should  show  that  the  court  met  and 
organized  i^ursuant  to  the  order  or  orders  constituting  it. 
It  is  necessary,  Jirst^  to  the  due  organization  of  a  general 
court  martial  that  there  should  assemble  at  the  time  and  place 
indicated  in  the  order,  at  least  a  quorum,  i.  e.  five,  of  the 
officers  detailed  as  members.  YIII,  649.  And  the  record 
should  show  that  at  least  five  members  were  present  and 
acting,  not  only  at  the  original  assembling  and  proceeding  to 
business  as  well  as  at  the  formal  organization  after  the  right 
of  challenge  has  been  fully  exercised,  but  also  at  every  day's 
session  throughout  the  trial  to  the  end.     Ill,  413  ;  VI,  384 ; 


EECORD.  415 

YIII,  049.  The  record  of  the  first  assembling  should,  prefer- 
ably^, specify  the  members  present  by  name,  rank,  &c. :  the 
statement  that  '^  all  the  members  "  were  present,  while  strictly 
sufficient,  is  not  a  form  to  be  favored.  A  statement  to  the 
effect  that  the  same  members  were  i)resent  as  at  a  previous 
trial  by  the  same  court,  is  improper,  as  being  in  contravention 
of  the  rule  that  the  record  of  each  case  should  be  an  entirety 
and  not  made  up  as  to  any  particular  by  a  reference  to  a 
record  of  a  previous  case.  Ill,  402.  As  to  the  statement  of 
the  assembling  of  the  court  on  the  days  subsequent  to  the 
day  of  the  organization, — it  is  sufficient  to  note  that  all  the 
members  were  present,  or  that  the  same  were  present  as  on 
the  day  before  or  as  at  the  last  jireceding  session ;  the  pref- 
erable form,  however,  is  to  specify  by  name,  &c.,  the  actual 
members  present  at  every  day's  session.  XXI,  351 ;  XXVI, 
516.  The  record  should  also  show  the  presence  of  the  accused 
at  the  time  of  the  organization  of  the  court  for  his  trial,  as 
also  at  all  the  material  stages  and  portions  of  the  proceed- 
ings.^   XXX,  200. 

e.  That  the  record  should  show  that  the  order  or  orders 
convening  the  court  and  detailing  the  members  were  read  to 
the  accused  or  communicated  to  him,  and  that,  (as  directed 
in  par.  891,  Army  Regulations,)  he  was  afforded  an  oppor- 
tunity of  objecting  to  any  member,  that  is  to  say  that  the 
privilege  of  challenge,  accorded  and  defined  by  the  8Sth 
Article  of  War,  was  extended  to  him.  II,  83.  This  testing 
of  the  members  is  the  second  essential  to  the  due  organization 
of  the  court,  and,  though  the  phraseology  of  the  question  put 
to  the  accused,  or  of  his  answer  thereto,  need  not  be  given  in 
the  record,  it  should  clearly  appear  either  that  he  had  (or 
made)  no  objection,  or  if  he  made  any,  what  it  was.  IX,  106; 
XX,  120.  Where  a  specific  challenge  is  offered,  it  should, 
preferably,  be  recorded  in  the  terms  in  which  it  is  expressed 
by  the  accused ;  and,  in  connection  with  each  challenge,  the 
record  should  set  forth  the  remarks  of  the  member,  if  any, 
and  the  action  of  the  court,  as  also,  if  an  issue  be  joined  on 
the  challenge,  the  evidence,  if  anj',  introduced,  and  the  sub- 
stance of  the  argument  had.  Where  a  member  is  added  to 
the  court  at  a  subsequent  stage  of  the  proceedings,  the  record 

^  Compare  Long  v.  State,  52  Miss.  23. 


416  RECORD. 

should  similarly  show  that  the  accused  was  afforded  an 
opportunity  of  objecting  to  him,  and  set  forth  the  action  taken 
if  objection  was  made.  YIII,  602.  It  may  be  added  that 
while,  with  the  convening  order,  any  subsequent  orders  by 
which  the  original  detail  may  have  been  modified,  should  be 
read  to  the  accused, — the  fact  that  other  orders  relating  to 
the  court,  but  not  to  its  personnel,  such  as  an  order  changing 
the  place  of  meeting  or  an  order  authorizing  the  court  to  sit 
without  regard  to  hours,  may  not  have  been  so  read,  will  not 
constitute  an  irregularity.  It  is  usual,  however,  and  proper, 
to  read  all  such  orders,  equally  with  those  relating  to  the  com- 
position of  the  court,  in  the  presence  of  the  accused.  XXXIX, 
239. 

/.  That  the  record  should  show,  as  the  final  essential  to 
the  due  organization  of  the  court,  that  the  members  were 
qualified  by  being  duly  sworn,  and,  (as  directed  by  par.  891, 
Army  Eegulations,)  that  they  were  so  sworn,  as  was  also  the 
judge  advocate,  in  the  presence  of  the  accused.  And  this  should 
be  shown  in  the  record  of  every  case  tried  by  the  same  court, 
since  the  court  and  judge  advocate  must  be  sworn  independ- 
ently and  anew  for  each  trial.  ^  XXXV,  8.  The  most  ap- 
proved form  for  recording  this  x^roceeding  is : — '  The  members 
of  the  court  were  then  severally  duly  sworn  by  the  judge  ad- 
vocate, and  the  judge  advocate  was  then  duly  sworn  by  the 
president  of  the  court  j  all  of  which  oaths  were  administered 
in  the  presence  of  the  accused.'  XIII,  483.  The  form  that — 
^  The  court,  including  the  judge  advocate,  was  then  duly 
sworn,'  is  not  a  proi)er  one  for  the  statement  of  the  qualify- 
ing of  a  general  court.-^  XXXYIII,  429.  Any  statement, 
however,  will  be  sufficient  from  which  it  can  be  gathered  by 
the  reviewing  officer,  or  i:>resumed,  that  the  members  and 

^  Compare  Coffin  v.  Wilbour,  7  Pick.  150.  "  It  is  not  con- 
sidered a  compliance  with,"  par.  829,  Army  Eegulations,  di- 
recting that  'the  court  is  to  be  sworn  at  the  commencement 
of  each  trial,'  "  to  call  several  i^risoners  into  court  at  the 
same  time  and  swear  the  members  of  the  court  once  before 
them  all."     G.  O.  60,  War  Dept.,  1873. 

2  See  this  opinion  adopted  in  G.  C.  M.  O.  12,  Hdqrs.  of 
Army,  1877. 

The  inversion  of  the  proper  order  of  swearing  the  court 
and  judge  advocate  was  held  by  the  Attorney  General,  (XIII 
Opins.  374,)  not  to  have  invalidated  the  proceedings  of  a 
naval  court  martial. 


RECORD.  417 

judge  advocate  were  in  fact  qualified  as  required  by  Arts.  84 
and  85,  and  in  the  hearing  of  the  accused.  Where  an  absent 
member  joins  or  a  new  member  is  added  to  the  court,  or  the 
first  judge  advocate  is  relieved  and  a  new  judge  advocate  is 
detailed,  at  a  stage  of  the  proceedings  subsequent  to  the  orig- 
inal organization  and  qualifying,  the  record  should  show  that 
such  member  or  judge  advocate,  before  acting,  was  sworn  as 
above  indicated.  Ill,  548 ;  IX,  222.  Where  several  i)ersons 
are  tried  together,  the  record  will  properly  show  that  the  oath 
was  taken  in  the  presence  of  all  the  accused.     XXIX,  434. 

g.  That  the  record  should  further  set  forth  the  arraignment 
of  the  accused  on  the  charges  and  specifications,  with  the  plea 
or  pleas  made.  II,  83  ;  XV,  540 ;  XVII,  134.  The  charges 
and  specifications  should  properly  be  embodied  in  the  record 
instead  of  being  referred  to  as  annexed,  (II,  495;  XIV,  39,) 
and  the  copy  of  the  same  should,  preferably,  include  the 
name  of  the  ofiicer  by  whom  they  are  preferred  and  signed. 

XIX,  610.  If  special  pleas  are  interposed,  the  issue  joined 
and  action  taken  upon  the  same  should  be  clearly  stated. 

h.  That  the  record  should  fully  set  forth  all  the  testimony 
introduced  upon  the  trial — the  oral  portion  as  nearly  as  prac- 
ticable in  the  precise  words  of  the  witness.  II,  23.  For  a 
judge  advocate  to  assume  to  record  only  such  testimon}'  as 
he  considered  material,  or  to  summarize  the  testimouy  given, 
has  been  remarked  upon  as  a  gross  irregularity.    Ill,  189 ; 

XX,  42.  It  is  usual  and  proper,  (though  not  essential,)  to 
specify  by  which  party  the  witness  is  introduced  and  by  whom 
the  questions  are  put.  XXVI,  344 ;  XXXIV,  435.  It  is  also 
usual  to  designate  the  point  at  which  the  prosecution  is  closed 
and  the  testimony  for  the  defence  is  commenced.  IV,  131. 
It  should  appear  that  each  witness,  (whether  or  not  his  evi- 
dence was  imx)ortant,)  was  sworn,  (III.  550 ;  XXI,  43 ; 
XXXIV,  457,)  but  it  is  not  customary  to  add  that  he  was 
sworn  in  the  presence  of  the  accused.  IX,  106.  Objections 
taken  to  the  admissibility  of  testimony  should  be  set  forth 
with  the  substance  of  the  argument  had  thereon,  if  any,  and 
the  ruling  of  the  court,  (XXVI,  643;)  and  where  the  court  is 
cleared  on  any  interlocutory  objection,  the  fiict  will  properly 
be  noted.     IX,  221. 

i.  That  the  record  should  state  the  finding  on  each   of 
27  D 


418  RECORD. 

the  several  charges  and  specifications,  (IX,  221,)  and  the  sen- 
tence in  the  event  of  a  conviction.  In  a  case  of  a  death  sentence, 
it  is  nsnal,  (though  not  essential,  not  being  required  by  the 
OGth  Article,)  to  state  that  it  was  concurred  in  by  two-thirds 
of  the  members.  II,  21 ;  IV,  158.  Care  should  be  taken  that 
there  be  no  variance,  in  the  statement  of  the  name  &c.  of 
the  accused,  between  the  finding  or  sentence  and  the  charges- 
As  directed  by  par.  891,  Army  Eegulations,  the  sentence 
should  be  certified  by  the  signatures  of  the  president  and 
judge  advocate,  by  whom  also  the  x>i'Oceedings  should  be  au- 
thenticated at  the  end  of  the  record.  II,  546.  Wliere,  how- 
ever, there  are  no  material  proceedings  after  the  sentence, 
the  subscription  of  the  same  by  these  officers  will  constitute 
a  sufficient  authentication  oi  the  record  as  a  whole.  XIX, 
610.  Where  the  i^resident  or  j  udge  advocate  has  been  changed 
pending  the  trial,  it  is  of  course  the  last  one  who  is  to  sign 
the  record.  XXIX,  604.  Adjoiu-nments  from  day  to  day  are 
not  required  to  be  authenticated.     YIII,  507. 

A;.  That,  as  in  substance  directed  by  par.  896,  Army  Eegu- 
lations, the  record  should  exhibit,  at  the  end  of  the  proceed- 
ings of  the  court,  the  action  thereon — approval  or  disapproval, 
&c. — of  the  reviewing  authority.  II,  550.  This,  though  it 
has  sometimes  been  endorsed  on  the  outside  of  the  record, 
is  preferably  and  customarily  written  and  signed  within  the 
record  on  a  page  following  the  authenticated  judgment  or 
other  final  proceeding  of  the  court.  lY,  313,  428.  Where 
several  cases  are  tried  by  the  same  court,  the  action  of  the  re- 
viewing officer  should  be  entered  in  the  record  of  each  trial : 
merely  to  endorse  it  upon  the  last  of  a  series  of  cases  would 
be  irregular  as  not  a  comi^liance  with  the  Regulation.  YIII, 
656.  So  it  is  irregular  and  insufficient  for  the  reviewing  offi- 
cer, in  lieu  of  writing  and  subscribing  his  action  in  the  record, 
to  annex  to  it  or  file  with  it  a  copy  of  a  General  Order  pro- 
mulgating the  proceedings  and  his  action  thereon;  for  this 
would  be  a  substitution  of  a  copy  for  the  original.  I,  412. 
Where  the  i^roceedings  are  to  be  forwarded  to  higher  author- 
ity for  final  action  on  the  sentence,  a  mere  reference,  as  by 
the  words — '  EespectfuUy  referred,  or  forwarded,  to  the  Pres- 
ident,' (or  other  superior,)  '  for  action,'  &c.  is  incomplete  and 
irregular.  In  such  a  case  the  original  reviewing  officer  should 
state  his  approval,  &c.  in  full  and  formal  terms.  lY,  313  j 
YII.  132. 


( 


RECORD.  419 

1.  That,  where  the  court  is  reassembled  for  the  purpose  of 
a  revision  of  its  proceedings  in  any  particular,  the  record 
should  formally  recite  all  that  is  ordered  and  done  as  a  new 
and  independent  chapter  of  the  historj'  of  the  case  tried. 
The  record  of  a  revision  will  properly  begin  with  setting  forth 
a  copy  of  the  order  reconvening  the  court,  and  will  show 
that  at  least  five  members  assembled,  together  with  the  judge 
advocate,  and,  where  the  correction  required  is  such  as  to 
make  it  proper  that  he  be  present,  (see  Kevision  §  4,)  the 
accused.  The  record  will  further  show  the  action  taken  by 
the  court,  in  making  the  correction  or  otherwise,  under  the 
order,  and  the  proceeding  will  be  finally  authenticated  by  the 
signatures  of  the  president  and  judge  advocate.  I,  487  ;  II, 
97;  IX,  653;  XI,  93,  113;  XY,  547;  XVII,  402;  XIX,  135. 
Where  the  court  decides  upon  making  the  correction,  the 
same  should  be  declared  to  he  made  in  manner  and  form  as 
determined  upon  and  with  the  proper  reference  to  the  part 
of  the  original  proceedings  in  which  the  error  occurs.  The 
error  itself,  however,  is  to  be  left  as  originally  recorded ;  all 
corrections  in  the  body  of  the  record  by  erasure,  interlinea- 
tion, &c.,  being  irregular  and  improper.  XI,  93 ;  XVI,  202. 
A  court  martial  is  not  authorized,  either  at  a  revision,  or  dur- 
ing the  trial,  to  expunge  bodily  any  material  words  or  state- 
ment forming  a  part  of  its  record.     XXVI,  604. 

2.  Among  the  minor  points  hold  by  the  Judge  Advocate 
General,  in  connection  with  the  subject  of  the  form  of  the 
Eecord,  are  the  following :  That  the  several  stages  of  the  pro- 
ceedings of  the  Court  should  api)ear  in  the  record  in  the 
proi^er  order;  thus,  that  the  swearing  of  the  court  should  not 
be  recorded  before  the  statement  as  to  whether  the  accused 
objected  to  any  of  the  members,  &c.  XI,  124 :  That,  in  its 
statement  of  the  opening  of  each  day's  session,  the  record 
may  well  mention,  if  such  was  the  fact,  that  the  proceedings 
of  the  previous  day  or  session,  (if  any  were  had  in  the  same 
case,)  were  read  and  approved.  XXV,  349 ;  XXXIV,  167. 
Such  a  reading  however,  though  desirable  as  giving  the  court 
an  opportunity  to  make  corrections,  is  often  not  resorted  to, 
and  even  where  it  is,  is  not  always  noted  in  the  record.  XXI, 
679 :  That,  except  where  the  court  is  specifically  authorized 
to  sit  "without  regard  to  hours,''  the  record — though  this  is 
not  essential,  the  94th  Article  of  War  not  requiring  it, — may 


420  RECORD. 

well  set  forth  the  hours  of  assembling  and  adjourning,  so  that 
it  may  appear  that  its  sessions  did  not  commence  earlier  than 
8  o'clock  a.  m.,  or  continue  later  than  3  o'clock  p.  m.  VII, 
433;  XYIII,  584;  That,  though  par.  893,  Army  Eegulations, 
in  directing  that  "the  record  shall  be  clearly  and  legibly 
written,"  and  "  as  far  as  practicable  without  erasures  or  in- 
terlineations," contemplates  that  the  record  will  be  written 
by  hand,  there  is  no  legal  objection  to  printing  the  record,  or 
any  part  of  it,  (such  as  the  charges  and  specifications  where 
numerous,)  provided  of  course  the  signatures  of  the  i)resi- 
dent  and  judge  advocate  are  written  by  them  in  person.  XIII, 
384:  That  the  record  will  conveniently  and  properly  be  en- 
dorsed on  the  outside,  or  cover,  so  that  the  name  of  the 
accused,  and  the  court  by  which  he  was  tried,  with  the  time 
and  i)lace  of  trial,  «&c.,  will  be  apparent  without  opening  and 
examining  the  i)roceedings.^    XXXI,  244. 

3.  Unless  it  clearly  appears  to  the  contrary  on  the  face  of  the 
record,  it  is  in  general  to  hQ  presumed  therefrom,  not  only  that 
the  court  had  jurisdiction  in  the  case,  but  also  that  the  i>ro- 
ceedings  were  sufficiently  regular  to  be  valid  in  law.^  XII, 
353. 

^See  G.  O.  29,  War  Dept.,  1871,  prepared  by  the  Judge 
Advocate  General  and  containing  a  form  of  endorsement  for 
the  entitling  of  records  of  courts-martial,  similar  to  that  pre- 
scribed by  Maj.  Gen.  Scott  in  G.  O.  50,  Hdqrs.  of  Army,  1851. 

2 However  desirable  it  m;iy  have  been,  in  view  of  the  nu- 
merous and  serious  defects  frequently  occurring  in  the  records 
of  courts  martial  during  the  late  war,  and  in  order  to  induce 
a  greater  j^recision  and  uniformity  in  the  prei>aration  of  such 
records,  to  treat,  (as  was  not  unfrequently  done,)  the  more  grave 
of  these  defects  hh  fatal  to  the  validity  of  the  proceedings  or  sen- 
tence, it  is  conceived  that  tlie  same,  in  general,  might  properly 
have  been  regarded,  and  may  now  be  regarded,  as  oidy  calling 
for,  or  justifying,  a  disapproval  of  the  proceedings.  It  is  the 
effect  of  the  rulings  of  the  civil  courts  that  wliere  the  court  on 
any  trial  was  legally  constituted,  had  jurisdiction  of  the  case, 
and  has  imposed  a  legal  sentence  or  judgment,  every  reason- 
able intendment  will  be  made  in  favor  of  the  regularity  of  its 
proceedings,  and  even  where  the  same  are  clearly  irregular, 
the  validity  of  the  result  will  not  be  deemed  to  be  affected, 
provided  no  statutory  provision  has  been  violated.  [See  Hut- 
ton  V,  Blaine,  2  Sergt.  &  Kawle,  75,  79  ;  Moore  v.  Houston,  3 
Id.  197;  Trinity  Church  i?.  Higgins,  4  Kobt.  1;  Edwards  r. 
State,  47  Miss.  581.J  And  it  is  further  held  that  the  regularity 
or  validity  of  the  minor  details  of  the  proceedings  may  be 


RECORD.  421 

4.  Where  the  proceedings  of  a  court  martial  have  regu- 
larly terminated,  and  the  sentence  has  been  confirmed  and 
ordered  to  be  executed  by  the  proper  and  final  reviewing  au- 
thority, the  fact  that  the  record  has  since  been  lost  does  not 
impair  or  affect  the  judgment  of  the  court,  and  constitutes 
no  legal  obstacle  to  the  enforcement  of  the  penalty.  IX,  238. 
But  where  the  record  of  the  trial  of  a  soldier  who  had  pleaded 
not  guilty,  and  in  whose  case  considerable  evidence  had  been 
introduced,  was,  by  a  casualty  of  war,  lost  before  any  action 
had  been  taken  upon  the  sentence  by  the  reviewing  officer, 
held  that,  unless  the  court  could  be  reconvened  and  a  new 
record  could  be  made  out  from  extant  original  notes,  the  i)ro- 
ceedings,  inasmuch  as  they  could  not  be  intelligently  re- 
viewed or  formally  approved,  should  properly  be  considered 
as  inoperative  and  the  sentence  of  no  eifect.     YI,  582. 

5.  The  legal  record  of  a  court  martial  is  that  record  Avhich 
is  finally  approved  and  adopted  by  the  court  as  a  body,  and 
authenticated  by  its  president  and  judge  advocate.  The 
court  as  a  whole  is  responsible  for  the  record,  and  the  instru- 
ment which  it  approves  as  such  is  its  record,  however  the 
same  may  have  been  made  up.    It  is  immaterial  to  the  suffi- 

shown  by  evidence  outside  the  record.  Van  Deusen  v.  Sweet, 
51  X.  York,  378.  Similarly — it  is  believed — no  omission  or 
error  in  a  record  of  court  martial,  not  in  contravention  of  ex- 
press statute,  should,  as  a  general  rule,  be  regarded  as  abso- 
lutely invalidating  the  proceedings  where  there  remains 
enough  in  the  record  fairly  to  warrant  the  presumption  that 
the  legal  requirements  have  been  complied  with,  or  where  the 
reviewing  authority  can  supply  the  defect  from  his  own  official 
knowledge,  or  from  current  orders  or  other  satisfactory  evi- 
dence read  ily  available  to  him.  Thus  where  the  statement  in  a 
record  as  to  the  qualifying  of  the  court,  &c.,  simply  is  that '  the 
court  and  judge  advocate  were  sworn,'  and  it  is  clearly  infera- 
ble from  the  other  entries  in  regard  to  that  day's  session  that 
the  accused  was  in  court,  it  may,  it  is  believed,  iair]  v  be  pre- 
sumed that  the  court,  &c.  were  dull/  sworn,  /.  c.  had  properly 
administered  to  theiu  the  oaths  prescribed  by  Arts.  84  and  So, 
and  were  sworn  in  the  presence  of  the  accused,  and  thus  that 
the  direction  of  the  Army  Eegulation,  (par.  891,)  which  is 
deemed  directory  only,  was  complied  with.  [In  Edwards  v. 
i^t'dte,  supra— 11  capital  case — in  which  the  record  simply  stated 
that  the  jury  was  '' sworn",  it  was  held  that  it  was  to  he  pre- 
sumed that  the  swearing  was  in  the  legal  form.]  So  where  no 
copy  of  the  convening  order  accomi)anies  the  proceedings,  but 
the  reviewing  authority,  from  the  fact  of  having  issued  it  him- 


422      REDUCTION   IN  RANK — REDUCTION   TO   THE  RANKS. 

ciency  of  a  record  whether  the  same  was  kept  or  written  by 
the  judge  advocate  or  a  clerk.  So  where  a  clerk  or  reporter, 
api^oiuted  and  sworn  to  keep  the  record,  did  not  act,  but  the 
record  was  prepared  by  the  judge  advocate  or  some  other  per- 
son employed  by  him  to  assist  him,  held  that  this  circum- 
stance did  not  affect  the  vahdity  of  the  record  as  finally  ap- 
proved by  the  court.     XLIII,  346. 

See  EECORD  §  8. 

NINETY  SIXTH  ARTICLE  $  1. 

ADJOURNMENT  §  1,  2. 

JUDGE  ADVOCATE  §  15,  17,  25. 

PROTEST. 

RECOMMENDATION  $  1. 

REVISION. 

WITNESS  ^  21. 

REDUCTION  m  RANK  OR  FILES. 

See  loss  OF  FILES. 


REDUCTION  TO  THE  RANKS,  I— OF  COMMISSIONED  OFFL 

CER. 

Eeduction  to  the  ranks  was  authorized  to  be  imposed  as  a 
punishment  by  courts  martial  upon  commissioned  officers  of 
the  army,  on  conviction  of  absence  without  leave — by  the  Act 

self  or  from  the  records  of  the  command  or  otherwise,  is  offi- 
cially apprized  that  the  court  w  as  duly  convened,  the  proceed- 
ings are  not,  it  is  believed,  to  be  treated  as  fatally  defective,  but 
— the  court  appearing  in  fact  to  have  been  constituted  and  to 
have  acted  pursuant  to  the  order, — may  be  regarded  as  valid  in 
law  though  imperfectly  recorded.  Where  indeed  the  record 
discloses  in  the  proceedings  of  a  general  court  martial,  an 
irremediable  defect  in  a  vital  particular,  as  the  fact  that  the 
court  was  comi^osed  of  but  four  members,  the  proceedings 
aud  sentence,  if  any,  must  be  held  inoiJerative,  since  the  stat- 
ute law — Art.  75 — has  fixed  five  members  as  the  legal  mini- 
mimi  for  such  a  court.  But  where  the  defect  occurs  in  a  less 
material  feature,  or  is  one  of  form  only,  the  same,  while  it 
may,  if  of  a  gi'ave  character,  pioperly  warrant  a  disapproval 
of  the  proceedings, — in  case  it  cannot  be  removed  by  a  revis- 
ion by  the  court  on  being  reassembled  for  the  purpose, — will 
not  in  general,  it  is  held,  justify  the  reviewing  authority  in 
pronouncing  the  proceedings  to  be  void,  or  in  treating  them 
as  necessarily  without  legal  effect.  [See  Defects  in  Pro- 
ceedings, Sentence,  &c.J 


REDUCTION   OF  NON  COMMISSIONED    OFFICERS.        423 

of  March  3,  18G3,  c.  75,  s.  22;  and,  upon  conviction  of  the 
offence  of  neglecting  or  refusing  to  turn  over  to  the  proper 
official  any  captured  or  abandoned  property  coming  into  the 
possession  of  the  party — by  the  Act  of  March  12, 18G3,  c.  120, 
s.  G.  This  i:)anishment  whicli  involved  a  dismissal  of  the  offi- 
cer, (XVI,  484,)  is  no  longer  legal ;  the  statutory  i^rovisions 
indicated  being  imi)liedly  confined  in  their  api)lication  to  the 
period  of  the  late  war,  (or  for  a  limited  period  succeeding  the 
same,)  and  not  being  re-enacted  in  the  Eevised  Statutes.^ 


REDUCTION  TO  THE  RANKS,  II— OF  NON  COMMISSIONED 

OFFICER. 

1.  A  court  martial,  in  sentencing  a  non-commissioned  offi- 
cer to  be  reduced  to  the  ranks,  is  not  emj^owered  to  direct 
that  when  reduced  he  be  transferred  to  another  regiment  or 
company.  The  authority  to  order  the  transfer  of  soldiers  is 
expressly  vested  by  Art.  XY  of  the  Army  Regulations  in  cer- 
tain military  commanders.     XI,  205. 

2.  The  warrant  or  certificate  given  to  a  non-commissioned 
officer  is  as  much  the  personal  property  of  the  individual  as 
is  the  commission  given  to  a  commissioned  officer.  In  the 
absence  of  any  statute  or  regulation  requiring  that  a  ser- 
geant or  corporal  shall  surrender  his  warrant  on  being  reduced 
to  the  ranks,  (or  dishonorably  discharged,)  he  may  retain  it 
witli  the  same  right  as  that  by  which  an  officer  retains  his 
formal  commission  on  being  dismissed.    XLI,  310. 

See  chief  MUSICIAN  ^  2. 
FORFEITURE,  11  $  12. 

^  Cases  of  officers  sentenced  to  this  j)unishnient,  upon  con- 
viction under  the  first  named  statute  are  published  in  G.  O. 
27,  War  Dept.,  18G4 ;  do.  80,  Dept.  of  the  Gulf,  18G3  ;  do.  38, 
Dept.  of  the  East,  18G4;  do.  3G,  Middle  Dept.  18G4;  do.  5, 
2d  Div.,  5th  Army  Corps,  1804;  G.  C.  M.  O.  25,  51,  Army  of 
Potomac,  18G4 ;  do.  12  Id.  1805.  Xo  instance  has  been  met 
with  of  the  imposition  of  this  punishment  ui)on  a  conviction 
under  the  latter  statute.  In  some  few  cases,  during  the  late 
war,  this  punishment  was  adjudged — illegally — for  oflences 
other  than  those  specified  in  the  Acts  designated  in  the  text. 


424  REGIMENTAL,   SzC,   COURT^^ — RELIEF. 


REGIMEIITAL  AHB  GAEEISOI^T  COURTS. 

See  seventeenth  ARTICLE  §  1. 
THIRTIETH  ARTICLE. 
SEVENTY  SECOND  ARTICLE  ^  9. 
EIGHTIETH  ARTICLE  v»  1,  4. 
EIGHTY  FIRST  ARTICLE. 
EIGHTY  SECOND  ARTICLE. 
EIGHTY  THIRD  ARTICLE. 
CHIEF  xMUSIClAN  ^  1. 
JUDGE  ADVOCATE  ^  I. 


REGULAE  ARMY. 

The  regular  army  was  mainly  distinguished  from  the  other 
principal  contingent  of  the  Army  of  the  United  States  during 
the  late  war — the  volunteer  force,  by  the  fact  that  the  tenure 
of  office  of  the  officers  of  the  former  was  not  in  general  limited 
either  expressly  or  by  implication,  to  the  period  of  the  war. 
An  unlimited  tenure,  lio\vever,is  not  a  necessary  or  invariable 
incident  of  office  in  the  regular  army.  The  eleven  new  regi- 
ments, for  example,  added  to  the  regular  army  by  the  Act  of 
July  29,  18G1,  were  "declared  to  be  for  service  during  the 
existing  insurrection,"  &c.  XXXIV,  459.  [And  see  Extra 
Pay,  as  to  the  similar  tenure  of  medical  storekeepers  of  the 
army;  also  Aid  de  Camp  §  2,  as  to  the  tenure  of  "additional" 
aids  de  camp.] 

RELIEF. 

1.  An  officer  or  soldier  cannot  in  general  properly  be  relieved 
by  executive  authority  from  the  consequences  oi  a  military 
order  or  proceeding  unless  the  same  has  deprived  him  of  some 
specific  right  callable  of  being  legally  restored  by  the  same 
authority — as  a  right  to  pay,  allowances,  or  bounty,  or  a  right 
of  command,  precedence,  &c.  Action  not  looking  to  some 
recognized  form  of  specific  relief  must  in  general  be  superHu- 
ous  and  futile,  and  to  take  such  action  is  contrary  to  the 
usage  of  the  War  Department.  Thus  where,  in  the  case  of  a 
party  who,  in  1804,  had  been  dismissed  the  service  as  an  offi- 
cer of  the  army  by  the  sentence  of  a  court  martiul  duly  con- 


RELIEF.  425 

firmed  and  executed,  an  application,  sui)ported  by  evidence 
going  to  indicate  that  his  dismissal  may  not  have  been 
strictly  legal,  but  not  satisfactorily  establishing  the  fact  of 
illegalit}^,  was  i)resented  in  his  behalf,  asking  to  have  the 
stigma  attacliing  to  his  record  in  the  service  by  reason  of 
the  dismissal  removed  by  an  official  de(-laration  in  General 
Orders, — advised^  (April,  1878,)  that  such  form  of  relief,  espe- 
cially in  view  of  the  fact  that  the  party  had  deceased^  would 
not  be  within  the  proper  x)rovince  of  the  Secretary  of  War. 
XLI,  214. 

2.  An  executive  dei)artment  has  in  general  no  poicer  either 
to  undo  an  executed  legal  act  of  the  past  or  to  indemnify  a  party 
for  injury  suffered  by  him  therefrom.  Thus  where  an  officer 
claimed  that  he  had  been  unjustly  prejudiced  by  not  having 
had  a  higher  relative  rank  in  his  grade  given  him  by  his 
original  appointment,  but  it  aj^peared  that  said  appointment 
had  been  confirmed  by  the  Senate,  accepted,  and  held  for 
nearly  thirteen  years,  and  that  to  increase  as  desired  the  rel- 
ative rank  thereby  conferred  would  divest  the  vested  rights 
of  twelve  officers  who  now  ranked  the  claimant  in  his  grade, 
advisedj  (Februarj^,  1880,)  that  however  unjustly  his  appoint- 
ment, when  made,  may  have  discriminated  against  this  officer, 
his  case  was  one  in  which  Congress  alone  could  grant  the 
appropriate  relief.    XLIII,  206. 

3.  The  authority  of  the  executive  department  of  the  gov- 
ernment to  grant  relief  is  limited  by  strict  law  and  to  a  few 
subjects.  Congress,  in  our  system,  is  the  fountain  of  general 
relief.  By  its  authority  to  authorize  special  appointments, 
and  to  dispose  of  the  i)ublic  money,  it  can  meet  and  ade- 
quately provide  for  nearly  all  the  applications  for  relief  i)re- 
sented  by  officers  and  soldiers  of  the  army  which  the  Execu- 
tive is  not  empowered  favorably  to  act  upon.    XLIV,  100. 

As  to  relief  by  means  of  the  Pardoning  Power,  see  Pardon. 
As  to  relief  from  a  dismissal,  or  from  a  sentence  of  court  mar- 
tial, see  Dismissal  j  President,  III  j  Statutes — Con- 
struction OF,  II. 

See  appointment  ^S  11. 

SENTENCE  OR  PUNISHMENT  $  15. 
VOLUNTEERS  ^  2. 


426  REMISSION — REMOVAL   OP  DISABILITY. 


REMISSION. 

Eemission  is  a  i)artial  exercise  of  tlie  pardoning  power,  re- 
lieving the  person  from  a  pimishment  or  the  unexecuted  i^or- 
tion  of  a  punishment,  but  not  pardoning  the  offence  as  such, 
or  removing  the  disabilities  or  penal  consequences  attaching 
thereto  or  to  the  conviction/  An  offender  can  be  completely 
rehabilitated  only  by  ^  fuU  pardon  granted  under  the  pardon- 
ing power  of  the  Constitution.^    XXIY,  679.     XXXYII,  613. 

See  one  HUNDRED  AND  TWELFTH  ARTICLE  §  1-14. 
ACCOMPLICE. 
DISCHARGE  §  7. 

FORFEITURE,  1^2;  ID.,  II  $  14,  15. 
IMPRISONMENT  §  6,  14,  19. 
PARDON  ^  2,  4,  11. 
PAY  AND  ALLOWANCES  §  20. 

"REMOVAL  OF  DISABILITY." 

The  so-called  ^'removal  of  disability, '^^  sometimes  ordered  by 
the  President  during  the  late  war,  was  a  form  adopted  in  ca,ses 
of  officers  of  volunteers  who  had  been  dismissed  the  service, 
and  whom,  for  good  cause  shown,  it  was  thought  proper  to 
reinstate.  This  form  was  not  an  exercise  of  the  pardoning 
power,  nor  did  it,  properly  speaking,  discharge  the  party  from 
any  disability,  since  a  dismissed  officer  is  under  no  legal  dis- 
ability to  re-enter  the  array.  It  simi)ly  amounted  to  a  waiver 
of  objection  on  the  part  of  the  Executive  to  the  reapi)ointment 
of  the  ofdcer  by  the  Governor  of  his  State,  or  rather  an  official 
declaration  that,  if  reappointed,  he  would  be  received  and 
allowed  to  be  mustered  into  the  service  of  the  United  States, 
notwithstanding  his  previous  dismissal.  Its  effect  was  to 
remove  the  stigma  of  dismissal,  and,  if  a  reapijointment  fol- 
lowed, to  fully  rehabilitate  the  party.  This  form  had  of 
course  no  proper  api)lication  to  officers  of  the  regular  arm}^, 
and  the  term  ^'removal  of  disability"  has  no  longer  any  sig- 
nificance in  our  service  as  api)lied  to  cases  of  dismissal.  Y, 
446;  XXI,  426;  XXIX,  431;  XXXYI,  330;  XLI,  675. 

^Compare  Perkins  t\  Stevens,  24  Pick.  277;  Lee  i\  Mari)hv, 
22  Grat.  799;  1  Bisli.  Or.  L.  §  763;  II  Opins.  of  Attvs.  Gen. 
329;  V  Id.  ijSS:  VIII  Id.  283-4. 

''  Ex  parte  Garland,  4  Wallace,  3.S0. 


EEPORTER.  427 

REPORTER. 

[Under  Section  1203,  Rev.  Sts.^] 

1.  The  power  to  appoint  the  reporter  is  vested  exchisively 
in  the  "judge  advocate"  and  cannot  he  exercised  by  the  court. 
[See  Judge  Advocate  §  23.]  In  general,  however,  the  court 
will,  of  course,  have  but  to  indicate  to  the  judge  advocate 
that,  in  its  opinion,  a  reporter  wouhl  be  desirable,  to  induce 
him  to  employ  one,  where  he  has  not  already  done  so.  The 
employment,  however,  of  a  stenographic  reporter  should  be 
resorted  to  only  in  an  important  case.     II,  515 ;  XXXIY,  232. 

2.  The  description — "The  judge  advocate  of  a  military 
court,"  does  not  strictly  include  the  recorder  of  a  court  of  in- 
quiry^ especially  as  a  court  of  inquiry*  is  not,  properly,  a  court 
at  all.  [See  One  hundred  and  fifteenth  Article  §  1, 
note.]  The  same  reason  however,  often  exists  for  appointing 
a  reporter  for  a  court  of  inquiry  as  for  a  general  court  martial, 
and  it  is  understood  that  the  Pay  Department  recognizes  and 
pays  the  accounts  of  reporters  appointed  by  recorders  of 
courts  of  inquiry.     II,  94;  XXXVIII,  194. 

3.  The  statute  may  be  said  to  contemplate  in  general  that 
a  short  hand  reporter  will  properly  be  paid  at  the  current 
rate  fixed  at  the  locality  of  his  emi)loyment,  provided  the 
same  may  not  be  unreasonable.  It  is  announced  in  G.  O.  208, 
War  Dept.,  18G3,  that  "phonographic  reporters,  euii)loyed 
under  the  authority  of  the"  statute  above  cited,  "will  be  al- 
lowed not  exceeding  ten  dollars  per  day,  and  when  the  place 
of  meeting  of  the  court  is  changed,  their  actual  travelling  ex- 
penses." The  payment  of  a  reporter  at  a  rate  higher  than 
thus  indicated  would  require  the  special  authority  of  the  Sec- 
retary of  War.     XXXVII,  G05;  XXXIX,  370. 

4.  The  statute  does  not  indicate  by  whom  the  reporter  shall 
be  sworn.     In  practice  he  is  sworn  by  the  judge  advocate;  a 

^  This  Section  provides: — "  The  judge  advocate  of  a  military 
court  shall  have  power  to  appoint  a  reporter,  who  shall  record 
the  proceediugs  of,  and  testimony  taken  before,  such  court, 
and  may  set  down  the  same,  in  the  first  instance,  in  short 
hand.  The  reporter  shall,  before  entering  upon  his  duty,  be 
sworu,  or  afiirmed,  faithfully  to  perform  the  same." 


128  REPRIMAND— REQUISITION. 

l^roper  form  of  oatb,  (as  following  the  wording  of  Sec.  1203,) 
being  :  You  swear  (or  affirm)  that  you  tcill  faithfully  perform 
your  duty  in  recording  the  proceedings  of  and  the  testimony  talcen 
before  the  court  in  the  case  note  on  trial.  If  the  same  party  is 
emi)lo3"ed  as  a  reporter  for  more  than  one  case,  lie  should, 
properly,  be  sworn  anew  in  each  case.    XXXI,  314. 

That  the  reporter  should  be  excluded  from  the  court  dur- 
ing its  deliberations  and  not  permitted  to  record  the  findings 
or  sentence,  see  Clerk  5  3. 


REPRIMAND. 

1.  A  coiu^t  martial,  in  imi^osing  the  punishment  of  repri- 
mand^ will,  if  adding  anything  in  regard  to  its  execution, 
properly  direct  that  the  reprimaud  be  administered  by  the 
commander  who  convened  the  court.  A  sentence,  to  be  rep 
rimanded  by  an  officer  inferior  to  the  convening  authority,  is 
not  in  accordance  with  the  ai>proved  x)ractice  of  the  service. 
It  is  not  necessary  or  desirable,  however,  that  the  court  should 
direct  as  to  the  execution  of  the  sentence,  the  same  being  the 
proper  i)rovince  of  the  reviewing  officer.     XII,  18. 

2.  Although,  in  adjudging  a  reprimand,  it  is  generally  in- 
tended by  a  court  martial  to  impose  a  mild  punishment,  the 
quality  of  the  reprimand  is  nevertheless  left  to  the  discretion 
of  the  authority  who  is  to  pronounce  it,  and  it  is  open  to  him 
to  make  it  as  severe  as  he  may  deem  expedient  without  being 
chargable  with  adding  to  the  punishment,    XXXIII,  486. 

REaUISITION. 

Whether  the  Executive  shall  turn  over  a  military  i)risoner 
undergoing  sentence  of  court  martial,  to  a  Governor  of  a 
State,  upon  his  formal  request,  in  order  that  he  may  be  tried 
and  punished  by  a  court  of  the  State,  or  in  order  to  enable 
such  Governor  to  surrender  him  to  the  Governor  of  another 
State  in  comijliance  with  a  requisition  made  by  the  latter  for 
the  i^arty  as  a  criminal  under  the  laws  of  the  latter  State, — 
is  a  question  to  be  decided  by  considerations  of  i)olicy  and 
expediency  suggested  by  the  facts  of  the  particular  case. 
The  U.  S.  government  is  under  no  obligation  to  surrender  its 
prisoner,  and  whether  it  will,  in  comity,  do  so,  should  in  gen- 


RESIDENCE.  429 

era!  depend  mainly  uiion  the  nature  of  the  crime  charged. 
Unless  the  party  he  charged  with  a  peculiarly  heinous  offence, 
of  which,  for  the  purposes  of  public  example  and  imuish- 
ment,  a  i)rompt  investigation  by  a  civil  tribunal  is  called  for, 
the  Executive  will  in  general  properly  decline  to  turn  over 
the  party  to  the  civil  authorities  till  his  military  punishment 
has  been  fully  executed.    XXXYII,  47. 

RESIDENCE. 

The  fact  of  being  in  the  military  service  does  not  of  course 
disqualify  an  oliicer  or  soldier  from  acquiring  a  legal  residence 
or  domicil,'  but  as  a  general  rule,  the  majority,  or  a  large  i)ro- 
portion,  of  the  officers  of  the  army  cannot  be  said  to  have,  for 
purposes  of  voting,  taxation,  or  otherwise,  any  legal  residence, 
tbat  is  to  say,  i^ermanent  abiding  i^lace  as  distinguished  from 
a  i)lace  of  temi)orary  habitancy.  The  fact  that  an  officer  is 
stationed  within  a  particular  State  or  Territory  does  not  make 
the  same  his  legal  residence,  since  he  is  there,  not  by  his  own 
will  or  choice,  but  in  obedience  to  the  order  of  a  suiierior,  and 
moreover  can  have  no  animus  remanencli,  subject  as  he  is  to  be 
removed  at  any  moment  by  a  similar  order  to  a  station  in  a  dif- 
ferent State,-  &G.  Exceptions,  however,  to  this  general  rule 
may  exist  in  the  cases  of  oflicers  who  are  not  subject,  or  lili:ely, 
to  have  their  places  of  habitancy  changed  by  sui)erior  military 
authority.  Such  are  the  cases  of  the  officers — the  chiefs  of 
the  staff  corps  for  instance — whose  duties  require  them  to 
remain  or  at  least  have  their  offices  permanently  in  Wash- 
ington ;  and  such  are  also  the  cases  of  the  majority  of  the 
officers  on  the  retired  list.  In  any  such  exceptional  case,  the 
question  of  residence,  where  it  is  at  all  doubtful,  will  in  the 
main,  as  in  the  cases  of  civilians,  be  determined  by  the  evi- 
dence of  an  anhmis  manendi,  as  exhibited  by  the  acts  and 
declarations  of  the  i)arty.     XXIX,  So  ;  XXX,  215,  528. 

As  to  residence  as  affecting  the  question  of  liability  to  tax- 
ation, see  Tax  §  3. 

As  to  the  residence  rendering  a  minor  eligible  to  appoint- 
ment as  a  cadet,  see  Cadet  §  1-4. 

^  Graham  v.  Commonwealth,  51  Pa.  St.  258  ;  Wood  v.  Fitz- 
gerald, o  Oregon,  5G8;  Cr.  O.  13,  First  :\lil.  Dist.,  1808. 

-Graham  v.  Commonwealth,  supra;  Wood  r.  Fitzgerald, 
suj^ra;  Taylor  v.  Eeading,  4  Brewst.  439  j  Devhn  i\  Ander- 
son, 38  Cal.  92.    And  see  Cadet  §  3. 


430  EESiaNATION. 


RESIGNATION. 

1.  It  lias  been  held  by  a  United  States  Court/  that — ^'  a 
civil  officer  lias  a  right  to  resign  his  office  at  pleasure,  and  it 
is  not  in  the  power  of  the  Executive  to  compel  him  to  remain 
in  office."  In  a  case  of  a  military  officer,  however,  this  right 
is  subject  to  certain  restrictions  growiug  out  of  the  military 
status.  Thus  while,  in  time  of  i^eace,  an  officer  of  the  army, 
in  good  standing,  is  in  general  entitled  to  tender  and  have 
accepted  his  resignation,  yet,  in  time  of  war  or  when  grave 
embarrassment  to  the  service  or  prejudice  to  discipline,  may 
result  from  his  leaving  his  duty,  the  acceptance  of  his  resig- 
nation may  jiroperly  be  refused.  And  so^  where  he  has  ten- 
dered his  resignation  while  under  charges,  and  a  failure  of 
justice  might  result  from  allowing  him  to  evade  trial.  XIY, 
129. 

2.  A  resignation  does  not  become  operative  until  the  officer 
is  officially  notified  of  the  acceptance  of  the  same.  Mere  ac- 
ceptance, without  notice,  does  not  give  effect  to  the  resigna- 
tion. It  is  not  till  due  notice  of  the  same  is  received  that  the 
officer  is  legally  separated  from  the  army  and  made  a  civilian, 
and  up  to  the  date  of  such  notice  he  is  entitled  to  pay.^ 
XLII,  68. 

3.  A  mere  offer  to  resign  or  tender  of  resignation  is  revoca- 
ble at  any  time  before  acceptance.  But  after  an  acceptance, 
and  before  effect  has  been  given  to  the  same  by  notice,  (see 
§  2,  supra,)  the  offer  can  not  be  withdrawn  or  materially  mod- 
ified by  the  act  of  the  officer  alone,  but  the  consent  of  the 

appointing  x^ower  is  also  necessary.    After  due  notice  of  the 

1 — 

'  United  States  v.  Wright,  1  McLean,  512. 

^Barger  v.  United  States,  0  Ot.  01.  35;  Mimmack's  Case, 
infra.  And  compare  the  wordiug  of  the  Forty-uiuth  Article 
of  War.  That  an  officer  is  effectually^  detached  from  the 
army  by  an  acceptance,  duly  couimunicated,  of  his  resigua- 
tion,  and  cannot  thereafter  be  restored  to  the  military  service 
by  a  revocation  of  such  acceptance,  or  by  anything  short  of 
a  re-appointment — see  the  leading  case  of  Mimmack  v.  United 
States,  in  XII  Opins.  of  Attys.  ^Gen.  555;  XIV  Id.  202;  10 
Ct.  CI.  564. ;  and  7  Otto,  420. 


RESTORATION — RETIRE3IENT.  431 

acceptance  has  been  communicated,  there  can  of  course  be  no 
withdrawal  of  the  tender.^     XXXIX,  375. 

4.  While  a  tender  of  his  resignation  by  an  insane  of&cer  is 
in  general  without  legal  effect  and  incapable  of  being  legally 
accepted,^  yet  where  a  resignation  tendered  by  an  insane 
officer  was,  in  the  absence,  at  the  War  Department,  of  any 
knowledge  of  his  insanity,  formally  accepted,  and  the  vacancy 
created  by  the  resignation  was  thereupon  filled, — held  that 
the  acceptance  could  not  legally  be  revoked,  and  that  the 
appointment  to  the  vacancy  was  valid  and  operative.^ 
XXXIX,  420. 

RESTORATION  OF  DISMISSED  OFFICER. 

See  dismissal,  I  ^  6;  ID.,  II  §  8. 
PEESIDENT,  III. 

STATUTES— CONSTRUCTION  OF,  II. 
VOLUNTEERS  §  2. 

RETIREMENT. 

1.  The  provision  of  Sec.  1248,  Eev.  Sts.,  giving  to  a  retir- 
ing board  such  powers  of  a  court  martial  and  court  of  inquiry 
as  may  be  necessary  to  enable  it  to  inquire  into  and  deter- 
mine a  question  of  alleged  disability,  does  not  authorize  such 
a  board  to  entertain  a  charge  of  a  military  offence  as  such,  or 
to  try  an  officer.     XX,  619. 

2.  The  investigation  of  a  retiring  board  is  not  affected  by 
any  limitation  of  time,  as  is  that  of  a  court  martial — viz.  by 
Art.  103.  Such  a  board  may  therefore  inquire  into  the  mat- 
ter of  a  disability,  however  long  since  it  may  have  originated. 
XX,  G19. 

3.  The  finding  of  a  retiring  board  under  Sec.  1251  or  Sec. 
1252,  Eev.  Sts.  is  in  the  nature  of  a  recommendation,  and  till 
it  is  "approved  by  tbe  President"  no  retirement  can  be 
ordered  thereupon.     XXVI,  104. 

4.  It  does  not  affect  the  authority  to  retire  under  Sec.  1251, 
Eev.  Sts.,  that  the  incapacity  of  the  officer  may  have  been 

^11  Opins.  of  Attvs.  Gen.  400;  XIV  Id.  201. 
2  VI  Opins.  of  Attys.  Gen.  450:  X  Id.  220;  XII  Id.  557. 
^  See,  to  a  similar  effect,  an  opinion  of  the  Attorney  Gen- 
eral of  March  22,  1878,  (XV  Opins.  —  .) 


432  RETIREMENT. 

found  to  have  resulted  from  a  wound  received  by  liim  while 
in  the  volunteer  service  before  entering  the  regular  army. 
XXVI,  104. 

5.  Under  Sec.  1252,  Eev.  Sts.,  an  ofi&cer,  may,  in  the  dis- 
cretion of  the  President,  legally  be  retired  by  reason  of  an 
incapacity  resulting  from  habitual  drunkenness.  XXVIII, 
568. 

G.  The  provisions  of  Sees.  1245  and  1252,  Eev.  Sts.,  author- 
izing the  President  to  '^  ivholly  retire  "  an  officer,  are  not  incon- 
sistent with  those  of  Sec.  1229  and  the  99th  Art.  of  War,  pro- 
hibiting the  dismissal  of  officers  by  executive  order  in  time 
of  peace.  Sections  of  the  same  Statute,  as  these  are,  (see 
Eevised  Statutes  §  1,)  must  all  be  given  equal  force  and 
effect,  unless  repugnant. and  irreconcilable.     XXVIII,  568. 

7.  The  provision  of  Sec.  1253,  Eev.  Sts.,  that  an  officer 
shall  not "  be  wholly  retired  from  the  service  without  a  full 
and  fair  hearing  before  an  army  retiring  board,  if,  ui^on  due 
summons  he  demands  it,"  may  be  said  to  entitle  an  officer 
subject  to  be  thus  retired,  to  appear  before  the  board,  (with 
counsel  if  desired,)  and  to  introduce  testimony  of  his  own,  and 
cross-examine  the  witnesses  examined  by  the  board,  includ- 
ing the  medical  members  of  the  board  who  may  have  taken 
part  in  the  medical  examination  and  have  stated  or  reported 
to  the  board  the  result  of  the  same.  XXIII,  626;  XXXI, 
603.  If  the  officer  does  not  elect  to  appear  before  the  board 
when  summoned,  he  waives  the  right  to  a  hearing,  and  can- 
not properly  take  exceptiou  to  a  conclusion  arrived  at  in  his 
absence.^    XX,  619. 

8.  The  provision  of  Sec.  1275,  Eev.  Sts.,  that  an  officer 
wholly  retired  shall  receive,  upon  retirement,  one  year's  pay 
and  allowances,  entitles  such  an  officer  to  receive  a  sum  equal 
to  the  total  of  one  year's  i^ay  and  all  the  pecuniary  allowances 
of  an  officer  of  his  rank.     XXIX,  360.    And  held  that  the  fact 

^  It  is  held  by  the  Attorney  General  in  an  opinion  of  May 
29,  1878,  (XVt  Opins.  — ,)  that  where  an  officer  of  the  navy 
had  been  retired  Avithout  liaving  had,  through  no  fault  of  his 
own,  the  fidl  and  fair  hearing  before  the  board  to  which  he 
was  entitled  by  Sec.  1455,  Eev.  Sts.  and  the  vacancy  on  the 
active  list  occasioned  by  Ins  retirement  had  not  been  filled, 
the  President  would  be  authorized  to  revoke  the  order  of 
retirement  so  that  the  officer  might  have  the  proper  hearing, 
before  final  action  in  his  case. 


EETIREMENT.  433 

that  an  officer,  at  tlie  time  of  being  Avliolly  retired,  was  under  a 
sentence  of  susi^ension  from  rank  and  pay,  did  not  affect  Ills 
riglit  to  receive  such  full  sum  upon  the  retirement.  XXIX,  045. 

9.  An  officer,  on  being  wholly  retired,  becomes  a  civilian, 
and  can  be  readmitted  to  the  service  only  by  a  new  appoint- 
ment. But  he  cannot  be  appointed  at  once  to  the  retired  list. 
A  civilian  cannot  be  ai)poiuted  as  a  retired  officer.  He  must 
first  be  appointed  an  officer  on  the  active  list,  of  a  certain 
rank.  None  but  a  commissioned  officer  on  the  active  list  of 
the  army  can  be  placed  on  the  retired  list.^  XXXI,  504; 
XLIII,  130.    [See  Appointment  §  13.] 

10.  Officers  on  the  retired  list  of  the  army  are  entitled  to 
the  benefit  of  the  provision  of  Sec.  12G2,  Eev.  Sts.  in  regard 
to  "  service  pay,"  in  the  same  manner  as  other  officers,  sub- 
ject of  course  to  the  provision  of  Sec.  1294.2    XXXIY,  181. 

11.  An  officer  on  the  retired  list,  being  as  much  a  part  of 
the  army  as  an  officer  on  the  active  list,  would  be  subject  to 
trial  by  general  court  martial  independently  of  the  provision, 
specifically  so  subjecting  him,  of  Sec.  1256,  Eev.  Sts.  XXXIII, 
613.  A  retired  officer,  upon  conviction,  may  be  sentenced 
similarly  to  an  officer  on  the  active  list,  except  that  the  punish- 
ments of  suspension  and  loss  of  files  or  relative  rank,  are  not 
api)roi)riate  to  the  status  of  a  retired  officer.    XXXVI,  ijG. 

12.  Held  that  retired  officers  of  the  army,  though  relieved 
in  general  from  active  military  service,  were  nevertheless,  as  a 
part  of  the  army,  i3rox3erly  exemi)t  from  the  public  obligations 
peculiar  to  civilians,  and  were  therefore  no  more  liable  than 
officers  on  the  active  list  to  be  required  to  serve  on  juries.  The 
question,  however,  of  exemption  is  one  for  the  determination 
of  the  courts ;  so,  where  a  retired  officer  was  summoned  for 
jury  duty  in  a  United  States  District  Court,  advised  that  he 
appear  before  the  court,  in  compliance  with  the  summons,  and 
there  urge  to  the  Judge  the  objection,  arising  from  his  military 
status,  to  his  serving  on  a  civil  jury.     XXXYII,  bi>. 

13.  Sec.  1782,  Eev.  Sts.  prohibits  and  makes  penal  the 

'  See  XIV  Opins.  of  Attys.  Gen.  506^ 

-That  an  officer  i)laced  ui^on  the  retired  list  can  not,  by  an 
executive  order,  be  allowed  any  pay  greater  than  or  additional 
to  that  authorized  by  statute  to  be  paid  to  retired  officers, — 
see  Opinion  of  Attorney  General  of  January  31,  1878,  (XV 
Oinns.  —  .) 
28  D 


434  REVIEWINa  AUTHORITY. 

receiving  by  any  ''  officer  in  the  emploj^ment  of  the  govern- 
ment" of  compensation  for  services  rendered  to  any  person 
in  relation  to  any  proceeding,  &c.  in  which  the  United  States 
is  a  i)arty  or  interested.  Held  that  a  retired  officer  of  the 
army,  though  not  actively  emjiloyed,  was  an  "  officer  in  the 
employment  of  the  government"  in  the  sense  of  this  statute. 
XXXVIII,  649. 

14.  Held  that,  under  the  opinion  of  the  Attorney  General 
of  June  11,  1877,  (published  in  G.  O.  57,  Hdqrs.  of  Army, 
1877,^)  distinguishing  between  the  receiving  of  compensation 
for  extra  services  and  of  compensation  for  two  distinct  (and 
not  incomi)atible)  offices,  a  retired  officer  could  legally  hold 
the  office  of  a  clerk  in  the  quartermaster  department,  and 
receive  the  pay  of  such  office,  while  at  the  same  time  retain- 
ing his  office  in  the  army  and  receiving  the  pay  of  the  same.^ 
XLIII,  197. 

As  to  the  holding  of  civil  offices,  and  receiving  the  emolu- 
ments of  the  same,  by  retired  officers,  see  Civil  Office  §§ 
8-11. 

See  seventy  FIFTH  ARTICLE  §  1. 
APPOINTMENT  ^  10. 
COLLEGE  OR  UNIVERSITY  $  I,  5. 
PAY  AND  ALLOWANCES   $  22,  note. 
RESIDENCE. 
TAX  §  2. 
WITNESS  $  26. 

EEVIEWING   AUTHORITY. 

1.  This  term  is  employed  in  military  parlance  ^  to  designate 
the  officer  whose  province  and  duty  it  is  to  take  action  upon, — 
ajiprove  or  disapprove,  &c., — the  proceedings  of  a  court  mar- 
tial after  the  same  are  terminated,  and  when  the  record  is 

^  To  a  similar  efiect  see  opinions  of  the  same  authority  of  Feb. 
7, 3  877,  (XV  Opins.— ,)  and  of  May  9, 1878,  (XVI  Opins.— ;) 
based  like  the  opinion  referred  to  in  the  text,  mainly  upon 
the  ruling  of  the  U.  S.  Supreme  Court  in  Converse  v.  United 
States,  21  Howard,  4G3. 

2  The  prohibition  of  the  Act  of  Sept.  30,  1850,  against  the 
holding  of  two  different  offices  at  the  same  time,  cited  by  the 
Court  of  Claims  as  decisive  in  the  case  of  Talbot  v.  United 
States,  10  Ct.  CI.  42G,  was  not  included  in  the  Revised  Statutes, 
and  is  not  now  in  force. 

2  It  occurs  also  in  Sec.  1228,  Rev.  Sts. 


REVTEWmG  AUTHORITY.  435 

transmitted  to  him  for  such  action.  This  officer  is  ordinarily 
the  commander  who  has  convened  the  court.  In  his  absence, 
however,  or  where  the  command  has  been  otherwise  changed, 
his  successor  in  command,  or,  in  the  language  of  Arts.  104 
and  109,  '^the  officer  commanding  for  the  time  being,"  is 
invested,  (by  those  Articles,)  with  the  same  authority  to  pass 
upon  the  proceedings  and  order  the  execution  of  the  sentence 
in  a  case  of  conviction.     XII I,  408. 

In  cases,  however,  of  sentences  of  dismissal  and  of  death, 
imposed  in  time  of  i)eace,  and  of  some  death  sentences 
adjudged  in  time  of  war,  as  also  of  all  sentences  "  respecting 
general  officers," — while  the  convening  officer,  (or  his  suc- 
cessor,) is  the  original  reviewing  authority,  with  the  same 
power  to  approve  or  disapprove  as  in  other  cases,  yet,  inas- 
much as  it  is  prescribed  by  Arts.  105,  106,  108  and  109  that 
the  sentence  shall  not  be  executed  without  the  confirmation  of 
the  President,  the  latter  becomes  in  these  cases  the  final 
reviewing  officer,  when — the  sentence  having  been  approved 
by  the  commander,  (for,  if  disapproved  by  him,  there  is  noth- 
ing left  to  be  acted  upon  by  the  superior,)  the  record  is  trans- 
mitted to  him  for  his  action,  k.  similar  division  of  the  review- 
ing function  exists  in  cases  in  which  sentences  are  approved, 
but  the  execution  of  the  same  is  suspended,  and  the  question 
of  their  execution  referred  to  the  President,  under  Art.  111. 
The  same  function  is  also  shared  between  inferior  and  sui>erior 
commanders,  under  Art.  107,  in  cases  in  which  sentences  are 
imposed  by  division  or  separate  brigade  coin-ts.  So,  under 
Art.  110,  in  cases  of  sentences  adjudged  by  field  officers' 
courts  in  time  of  war. 

AYliere  a  general  court  martial  is  convened  directly  by  the 
President  as  Commander-in-chief,  he  is  of  course  both  the 
original  and  final  reviewing  authority. 

2.  While  approval  gives  life  and  operation  to  proceedings 
or  sentence,  disapproval,  on  the  other  hand,  quite  nullifies  the 
same.  A  disapi)roval  of  the  proceedings  of  a  court-martial 
by  the  legal  reviewing  authority  is  not  a  mere  exi^ression  of 
disapprobation,  but  a  final  determinate  act  putting  an  end 
to  such  proceedings  in  the  i)articular  case,  and  rendering 
them  entirely  nugatory  and  inoperative  j  and  the  legal  effect 
of  a  disapproval  is  the  same  whether  or  not  the  officer  dis- 
approving is  authorized  finally  to  confirm  the  sentence.    But 


436  REVIEWING  AUTHORITY. 

to  be  tlius  operative,  a  disapproval  should  be  express.  As 
frequently  remarked  in  the  opinions  of  the  Judge  Advocate 
General,  the  mere  absence  of  an  approval  is  not  a  disapproval, 
nor  can  a  mere  reference  of  the  i^roceediugs  to  a  superior 
without  words  of  approval  operate  as  a  disapproval  of  the 
liroceedings  or  sentence.^  The  effect  of  the  disapproval, 
wholly,  of  a  conviction  or  sentence  is  not  merely  to  annul  the 
same  as  such  but  also  to  prevent  the  accruing  of  any  dis- 
ability, forfeiture,  &c.,  which  would  have  been  incidental  ui)on 
an  approval.^  A  disapjjroval  of  a'  conviction  of  a  particular 
offence  also  ox)erates  to  nullify  the  conviction  of  any  lesser 
included  offence,  involved  in  the  conviction  of  the  specific 
offence  charged.     [See  Finding  §  8.J    XXX,  497 ;  XXXII,  1. 

Where  the  original  reviewing  officer  disapproves  a  sentence, 
to  the  execution  of  which  the  confirmation  of  superior 
authority  is  made  requisite  by  the  code, — as  where,  (in  time 
of  peace,)  the  department  commander,  who  has  convened  the 
court  in  the  case  of  an  officer,  disapi)roves  a  sentence  of  dis- 
missal adjudged  thereby, — the  sentence  being  nullified  in  law, 
there  remains  nothing  for  the  superior  authority  to  act  upon, 
and  to  transmit  the  i)roceedings  to  him  for  action  will  be 
improper  and  unauthorized.  Ill,  537  ]  YII,  479  j  XXX,  497; 
XXXII,  1,  630. 

A  reviewing  officer  cannot  disajiprove  a  sentence  and  then 
proceed  to  mitigate  or  commute  the  i^unishment,  siuce,  upon 
the  disapproval,  there  is  nothing  left  in  the  case  upon  which 
any  such  action  can  be  based.    XXII,  456. 

It  is  quite  immaterial  to  the  legal  effect  of  a  disapproval 
whether  any  reasons  are  given  therefor,  or  whether  the  rea- 
sons given  are  well-founded  in  fact  or  sufficient  in  law. 
XXVIII,  198. 

3.  The  authority  of  a  military  commander  as  reviewing 
officer  is  limited  to  taking  action  upon  the  proceedings  and 
sentence,  (if  any,)  by  approving  or  disapproving  the  same,  (in 

^  See  a  late  opinion  of  the  Attorney  General  of  April  30, 

1879,  (XVI  Opins. ,)  where  it  is  remarked  that  it  is  not 

a  legal  disapproval  of  a  conviction  or  sentence  for  the  original 
reviewing  otficer,  in  forwarding  the  proceedings  for  the  action 
of  superior  authority,  to  endorse  upon  the  same  an  opinion 
to  the  effect  that  the  finding  is  not  sustained  by  the  evidence. 

^A  disapproval  of  a  sentence  by  tlie  i)ioper  reviewing 
authority  is  "tantamount  to  an  acquittal  by  the  court." 
XIII  Opins.  of  Attys.  Gen.  460. 


RE  VIE  WING  AUTHORITY.  437 

whole  or  in  part,)  and  directing  the  execution  of  the  sentence^ 
and  to  the  incidental  function,  as  conferred  by  Art.  112,  of 
pardoning  or  mitigating  the  punishments  which  have  been 
approved  by  him.  XXII,  456.  Action  not  included  within 
these  powers  he  is  not  authorized  to  take.  Thus,  he  cannot 
himself  correct  the  record  of  the  court,  by  striking  out  any 
part  of  the  finding  or  sentence,  or  otherwise,  (see  Eevision 
§  8  ;)  nor  can  he  in  general  change  the  order  in  which  differ- 
ent penalties  are  adjudged  by  the  court  to  be  suffered,  (see 
DiscHARGrE  §  9 ;)  nor  can  he  add  to  the  punishment  imposed 
by  the  court  though  deemed  hj  him  quite  inadequate  to  the 
offence.  [See  Sentence  and  Punishment  §  13.]  A  review- 
ing officer,  however,  may,  in  general,  specify  the  reasons  for 
the  action  taken  by  him,  without  transcending  his  authority. 
Thus,  where  a  department  commander  disai^i^roved  a  sentence 
as  inadequate,  and  in  stating  his  grounds  for  so  doing,  com- 
mented unfavorably  upon  the  conduct  of  the  accused  as 
indicated  by  the  evidence,  held  that  such  comments  were  a 
legitimate  explanation  of  the  action  taken,  and  did  not  con- 
stitute an  adding  to  the  punishment.     XIX,  G76. 

4.  Where  the  reviewing  officer  deems  that  the  proceedings 
of  the  court  are  in  any  material  particular  erroneous  or  ill 
advised,  his  proper  course  in  general  will  be  to  reconvene  the 
court  for  the  purpose  of  having  the  defect  corrected,  at  the 
same  time  furnishing  it  with  the  grounds  of  his  opinion. 
[See  Eevision  §  1, 2.]  Thus  if  he  regards  the  sentence  inade- 
quate, he  should,  in  reassembling  the  court  for  a  revision  of 
the  same,  state  the  reasons  whj^  he  considers  it  to  be  dispro- 
portionate to  the  amount  of  criminality  involved  in  the  offence. 
XI,  490.  But  although  he  cannot  compel  the  court  to  adopt 
his  views  in  regard  to  the  supposed  defect,  he  may,  in  a  proper 
case,  express  his  formal  disapprobation  of  their  neglect  to  do 
so.  Thus  where  a  court  martial,  on  being  reconvened,  with 
a  view  of  giving  it  an  opportunity  to  modify  a  sentence  mani- 
festly too  lenient  for  the  offence  found,  decided  to  adhere  to 
the  sentence  as  adjudged,  and,  on  being  again  reassembled 
to  consider  further  grounds  x)resented  hy  the  reviewing 
■  commander  for  the  infliction  of  a  severer  penalty,  again  de- 
clined to  increase  the  punishment, — held  that  it  was  within 
the  authority  of  the  reviewing  officer,  and  would  be  no 
more  than  proper  and  dignified  for  him,  in  taking  final  action 


438  REVIEWING  AUTHORITY. 

upon  the  case,  to  reflect  upon  the  refusal  of  the  court  as  ill- 
judged,  and  as  having  the  efi'ect  to  imjiair  the  disciiiline  and 
prejudice  the  interests  of  the  military  service.     XII,  546. 

5.  In  passing  upon  the  findings  and  sentence  of  a  court 
martial,  the  reviewing  officer  will  properly  attach  special 
weight  to  its  conclusions  w^here  the  testimony  has  been  of  a 
conflicting  character.  This  for  the  reason  that,  having  the 
witnesses  before  it  in  person,  the  court  w^as  qualified  to  judge, 
from  their  manner  in  connection  with  their  statements,  as  to 
the  proper  measure  of  credibility  to  be  attached  to  them  indi- 
vidually.^ XXX,  383,  447;  XXXY,  542;  XXXVIII,  324. 
[See  Finding  §  14.] 

G.  The  reviewing  authority  should  i^roperly  authenticate 
the  action  taken  by  him  in  any  case  by  subscribing  in  his 
own  hand,  (adding  his  rank  and  command,  as  Indicating  his 
legal  authority  to  act,)  the  official  statement  o£  the  same  as 
written  in  or  upon  the  record.  [See  Eecord  §  1,  7v.]  Im- 
pressing the  signature  by  means  of  a  stamp  is  not  favored. 
IV,  567  ',  XXII,  513,  568. 

7.  A  military  commander  cannot  of  course  delegate  to  an 
inferior  or  other  officer  his  function  as  reviewing  authority  of 
proceedings  or  sentence  of  a  court  martial,  as  conferred  by 
the  104th  or  109th  Article  of  War  or  other  statute.  Xor  can 
he,  regularly,  authorize  a  stafl'  or  other  officer  to  write  and 
subscribe  for  him  the  action,  by  w  ay  of  approval,  disapproval, 
&c.,  which  lie  has  decided  to  take  upon  such  i^roceedings. 
An  approval  purporting  to  be  subscribed  by  the  commander, 
^'%"  his  staff  judge  advocate  or  assistant  adjutant  general, 
would  be  open  to  question  and  quite  irregular ;  as  would  also 
be  any  action  subscribed  by  such  an  officer,  purporting  to 
be  taken  '  in  the  absence  and  by  the  direction  of  the  com- 
mander. IV,  567;  VII,  19,  VIII,  64,  639,  IX,  27;  XV,  548; 
XVII,  191.  [See  One  hundred  and  fourth  Article 
§  4,  5.] 

8.  Action  taken  by  a  reviewing  officer  upon  tlic  proceedings 
and  sentence  of  a  court-martial  may  be  recalled  and  modified 
before  it  is  published  and  the  party  to  be  affected  is  duly  noti- 

^  See  the  early  case  of  Capt.  Weisner,  Am.  Aichiv.,  5th 
Series,  vol.  II,  p.  895.  So,  civil  courts  will  rarely  interfere, 
except  in  cases  of  clear  injustice,  with  verdicts  of  juries  which 
have  turned  upon  the  credibility  of  witnesses.  Wright  v. 
State,  34  Ga.  110;  Whitten  v.  State,  47  Id.  297. 


REVISED   STATUTES.  439 

fied  of  the  same.  After  such  notice  the  action  is  beyond 
recall.  The  power  of  remission  indeed  may  be  exercised  so 
long  as  any  part  of  the  inmishment  imposed  remains  unexe- 
cuted. [See  One  hundred  and  tayelfth  Article  §  4.] 
But  when  the  final  approval  of  the  sentence,  (or  other  action 
taken,)  has  been  once  officially  communicated  to  the  accused, 
the  function  and  authority  of  the  reviewing  authority  as  such 
over  and  respecting  the  same  is  exhausted  and  cannot  be  re- 
vived. An  approval  cannot  then  be  substituted  for  a  disap- 
proval, or  vice  i-ersa,  nor  can  an  approved  i^unishment  be 
mitigated  or  commuted.    yill,556;  XXyiI,377;  XXXI,  15. 

See  eightieth  ARTICLE  Q  9. 

EIGHTY  SECOND  ARTICLE  $  5. 
DISCHARGE  §  10. 

president,  II  $  1. 

WITNESS  $  6. 

REVISED  STATUTES. 

1.  The  Kevised  Statntes  are  a  single  Act  of  Congress,  which, 
in  the  absence  of  any  special  provision  as  to  the  date  on  which 
the  same,  (or  any  part  of  the  same,)  should  take  eft'ect,  went 
into  operation  on  the  day  of  its  approval  by  the  President — 
June  22,  1874.^  The  date  of  the  certificate,  published  with 
the  same,  of  the  Secretary  of  State,  viz.  Feb.  22,  1875,  simply 
fixes  the  time  at  which  the  contents  of  the  i)rinted  volume 
became  evidence  of  the  laws  therein  contained.    XXXVI,  630. 

2.  The  laws  relating  to  the  Army,  embraced  in  the  Eevised 
Statutes,  became  operative  as  to  the  army,  ex  proprio  vhjore, 
upon  the  approval  by  the  President  of  the  body  of  theEevision, 
irrespective  and  independently^  of  any  iniblication  of  such  laws 
in  General  Orders.     XXXVI,  GOG. 

3.  Held  that  an  Act  of  IcSoG,  authorizing  the  transfer  of 
certain  lands  in  Florida,  (which  had  been  reserved  for  military 
purposes,)  to  the  Secretary  of  the  Interior,  with  the  consent 

^  Since  the  date  of  this  opinion,  the  Kevision  of  1874  has 
been  itself  revised,  under  an  Act  of  Congress  of  ]March  2, 
1877,  and  the  re-revision,  published  in  1878,  and  certified  to 
by  the  Secretary  of  State,  constitutes  "legal  evidence  of  the 
laws  therein  contained."  This  second  revision,  however,  is 
not  a  new  statute,  but  merely  a  '•  new  edition"  of  the  Kevised 
Statutes  of  1874,  with  additions  and  corrections. 


140  REVISION. 

of  the  Secretary  of  War,  and  their  disposition  and  sale  as 
public  lands,  belonged  to  the  class  of  ''i)rovisions  of  a  local 
or  temporary  character"  indicated  in  the  Proviso  to  Sec.  5596, 
Eev.  Sts.,  and  was  therefore  not  repealed  by  such  Statutes, 
but,  having  remained  unexecuted,  might  legally  be  executed 
at  this  time,  (1878.)     XLI,  215. 

asvisioN. 

1.  Where  the  record  of  a  trial,  as  forwarded  to  the  reviewing 
authority  for  his  action,  is  deemed  by  him  to  exhibit  some  error, 
omission,  or  other  defect,  in  the  proceedings  capable  of  being 
supi^lied  or  remedied  by  the  court  5  as,  for  example,  an  inade- 
quate, excessive,  illegal,  or  irregular  sentence,  or  a  finding  not 
authorized  by  the  evidence;  or  an  omission  of  some  material 
matter — as  a  failure  to  prefix  to  the  record  a  copy  of  the  con- 
vening order,  or  to  authenticate  the  proceedings  by  the  signa- 
tures of  the  iDresident  or  judge  advocate,  or  to  enter  the  i^roper 
statement  as  to  the  members  present,  or  to  recite  as  to  the  offer- 
ing to  the  accused  of  an  opportunity  to  object  to  the  same  or 
as  to  the  qualifying  of  the  court  by  the  prescribed  oaths,  or  to 
fully  record  the  plea,  finding  or  sentence  -,  or  some  mere  cler- 
ical error  in  a  matter  of  form; — the  court  may  and  in  general 
prox)erly  will  be  reconvened  by  the  order  of  the  reviewing 
officer,  (the  convening  authority  or  his  successor  in  the  com- 
mand,) for  the  purpose  of  correcting  the  record  in  the  faulty 
particular,  provided  a  correction  be  practicable.  In  a  case  of 
an  omission,  the  object  of  course  is  that  the  record  may  be 
made  to  conform  with  the  Jacf.  If  the  fact  is  that  the  pro- 
ceeding, apparently  merely  omitted  to  be  recorded,  was  actu- 
ally not  had,  the  proposed  correction  cannot  of  course  be 
made.  There  is  no  limit  to  the  number  of  times  that  a  court 
may  be  reconvened  for  a  revision  of  its  i)roceedings.  It  is  sel- 
dom however  reassembled  a  second  time,  where  it  declines  on 
the  first  occasion  to  make  the  correction  desired.  II,  154; 
XI,  490;  XX,  GOO;  XX VIII,  280,  304. 

2.  The  order  reassembling  the  court  will  jjroperly  indicate 
the  i)articular  or  jjarticulars  as  to  which  a  revision  or  correc- 
tion is  desired,  or  refer  to  i)ai)ers,  accomi)anying  it,  in  which 
the  supx)osed  omission  or  other  defect  is  set  forth.  XI,  93. 
Whether  to  make  or  not  the  proposed  correction  will  be  of 


EEYISION.  441 

course  in  the  discretion  of  the  court.  The  reviewing  authority 
cannot  of  course  compel  and  would  not  be  authorized  to  com- 
mand the  court  to  make  it.    VII,  112  j  XXXIY,  435. 

3.  A  correction  can  be  made  only  by  a  legal  court.  At 
least  five  therefore  of  the  members  of  the  couit  who  acted 
upon  the  trial,  must  be  present.  That  there  are  fewer  mem- 
bers at  the  re-assembling  than  at  the  trial  is  immaterial,  pro- 
vided five  are  present.  I,  487;  XXXY,  C5G.  The  judge 
advocate  should  be  present.    I,  487. 

4.  It  is  not  in  general  necessary  or  desirable  that  the  ac- 
cused be  present  at  a  revision.  Where,  however,  any  possi- 
ble injustice  may  result  from  his  absence,  he  should  be  re- 
quired or  permitted  to  be  present,  and  with  counsel,  if  pre- 
ferred. Thus,  where  the  defect  to  be  corrected  consists  in 
an  omission  i)roperly  to  set  forth  a  si^ecial  jjlea  made  or  ob- 
jection taken  by  the  accused,  it  may  be  desirable  that  he 
should  be  present  in  order  that  he  may  be  heard  as  to  the 
proper  form  of  the  proposed  correction.  Where  the  error  is 
clerical  merely,  or,  though  relating  to  a  material  particular, 
consists  in  the  omission  of  a  formal  statement  only,  the  pres- 
ence of  the  accused  is  not  in  general  called  for.    IX,  Gj3. 

5.  It  is  now  settled  in  our  law  that  a  court  martial  is  not  em- 
powered, at  this  i^roceeding,  to  take  or  receive  testimony.^ 
XYI,  562 ;  XIX,  41 ;  XLII,  275. 

G.  The  amendment  can  only  be  made  by  the  court  when 
duly  reconvened  for  the  purpose,  and  when  made  must  be 
the  act  of  the  court  as  such.  A  correction  made  by  the  presi- 
dent or  other  member,  or  by  the  judge  advocate,  independ- 
ently of  the  court,  and  by  means  of  an  erasure  or  interlinea- 
tion or  otherwise,  is  unauthorized  and  a  grave  irregularity. 
The  correction  must  be  wholly  made  and  recorded  in  and  by 
the  formal  i^roceedings  upon  the  revision.  The  record  of  the 
correction,  as  thus  made,  will  refer  of  course  to  the  page 
or  part  of  the  record  of  the  trial  in  which  the  omission  or  de- 
fect occurs ;  but  this  part  of  the  record  must  be  left  precisely 
as  it  stands.  The  court  is  no  more  authorized  to  correct  the 
same  by  erasure  or  interlineation  on  the  page,  or  by  the  sub- 
stitution for  the  defective  portion  of  a  re-written  corrected 
statement,  than  would  be  the  judge  advocate  or  a  member. 

'  See  G.  O.  47,  Hdqrs.  of  xVrmy,  1879. 


442  REVISION. 

II,  97;    XI,    93:  XYI,  202^   XXXIY,  416.     [See  Eecord 

§  1,  I] 

7.  Wliere,  after  a  sentence  liad  been  dnly  adjudged,  and 
the  record  forwarded  to  the  reviewing  officer,  a  majority  of 
the  members  of  the  court  transmitted  to  him  a  written  state- 
ment to  the  effect  that  the  sentence  was  intended  to  have  a 
certain  meaning  not  conveyed  by  its  terms — i.  e.  was  not  in- 
tended to  operate  as  a  forfeiture  of  certain  pay  clearly  for- 
feited by  it  as  recorded — held  that  such  volunteer  statement 
could  have  no  effect  as  a  correction  of  the  sentence.  XXXIII, 
347. 

8.  The  reviewing  officer  himself  can  have  no  authority  to 
make  a  correction  in  any  i^art  of  the  record.  Thus  where,  upon 
a  specification  duly  setting  forth  a  military  offence,  a  court 
martial  found  an  accused  "  guilty  but  without  criminality  ", 
and  the  reviewing  commander,  in  disapproving  this  contra- 
dictory finding,  ordered  that  the  words  after  "guilty"  be 
treated  as  struck  out  of  the  record,  lieUl  that,  however  ob- 
jectionable the  finding,  the  reviewing  officer  could  not  himself 
assume  to  correct  it,  but,  if  he  desired  it  amended,  should 
have  formally  reconvened  the  court  for  the  purpose.  XII, 
250. 

9.  Where  the  court  has  been  dissolved.,  or,  by  reason  of  any 
casualty  or  exigency  of  the  service,  cannot  practically  be  re- 
convened, there  can  of  course  be  no  correction  of  its  proceed- 
ings.    XXXI,  108. 

10.  The  ijrocedure  here  contemplated  is  of  course  quite  dis- 
tinct from  the  ordinary  revision  and  correction  of  its  proceed- 
ings by  a  court  martial  from  day  to  daj"  during  a  trial  and 
before  the  record  is  completed.    XXYII,  581. 

See    dismissal,  III  ^  7. 
EECORD  ^  1,  I. 
RETIREMENT  ^  4. 
VARIANCE. 


SALE  OF  AEMS— SALE  OF  STORES.  443 


s. 


SALE,  &c.,  OF  ARMS,  &c.,  BY  SOLDIERS. 

1.  Held,  (December,  18GG,)  that  tlie  provisions  of  s.  23,  c.  75, 
Act  of  March  3,  18G3,  prohibiting  the  sale,  «&c.,  of  their  arms 
&c.,  by  soldiers,  and  declaring  that  no  right  of  property  or 
possession  shonld  be  acquired  thereby,  &c.,  ^Yere  not  limited 
in  their  operation  to  the  period  of  the  war,  but  were  still  in 
force,^  and  that  an  officer  of  the  army  would  therefore  be  au- 
thorized to  seize  arms,  &c.,  disposed  of  contrary  to  such  pro- 
hibition, whenever  and  wherever  found.  XXII,  525.  But 
Inasmuch  as  there  have  been  sundry  authorized  sales  of  arms 
and  other  ordnance  stores  since  the  end  of  the  war,  advised 
that  ofiicers,  before  making  seizures,  should  assure  themselves 
that  the  parties  in  possession  have  not  acquii-ed  title  in  a  legal 
manner.    XXIX,  187,  204. 

SALE  OF  MILITARY  STORES. 

In  view  of  the  general  authority  vested  in  the  President  and 
Secretary  of  War  by  the  provision,  in  regard  to  the  sale  of 
military  stores  damaged  or  unsuitable  for  the  public  service, 
of  the  Act  of  March  3, 1825,  (now  contained  in  Sec.  1241,  Eev. 
Sts.,)  held  that  such  stores  might  legally  be  sold  on  credit, 
if  such  mode  of  disposition  was  deemed  for  the  public  interest. 
XXIX,  330. 

That  stores  not  damaged  or  unsuitable,  as,  for  example, 
serviceable  arms,  cannot  be  sold  by  the  Executive  without 
the  authority  of  Congress — see  Public  Propekty,  Disposi- 
tion OF,  &c.  §  4. 

^  See  these  provisions  as  now  incorporated  in  the  Revised 
Statutes,  in  Sees.  1242  and  3748.  The  further  provision  of 
the  original  Act  making  punishable  with  line  and  imprison- 
ment persons  purchasing  from  soldiers  their  arms,  equipments, 
clothing,  ♦ix.,  has  not  been  retained  in  the  Kev.  Sts. 


444  SALVAGE. 


SALVAGE. 


1.  It  is  a  general  principle  of  law  that  public  property  stands 
on  the  same  footing  with  private  property  as  regards  salvage^ 
and  upon  this  principle  the  goods  of  the  government  are  or- 
dinarily held  liable  to  the  same  rate  of  salvage  as  those  of  in- 
dividuals, and  may  be  arrested  and  proceeded  against  in 
like  manner.^  But  to  this  rule  exceptions  have  been  estab- 
lished. It  has  been  held  that  the  mails  cannot  be  detained 
for  salvage,^  and  it  has  also  been  considered  that  our  national 
ships-of-war  should  not  be  liable  to  arrest  and  detention  at 
the  suit  of  salvors,  "on  account  of  the  injury  and  inconven- 
ience which  might  result  to  the  public  interests  therefrom."^ 
This  reasoning  would  appear  to  be  equally  ai)plicable  to  a  case 
of  supplies  en  route  to  armies  in  the  field  in  time  of  war.  So 
where  certain  subsistence  and  quartermaster  stores,  in  transit 
to  our  armies  and  needed  for  their  use,  were  detained  by  the 
United  States  marshal  at  Cairo,  Illinois,  at  the  suit  of  the 
salvors  of  a  steamer  sunk  with,  her  cargo  (including  these  sup- 
lilies)  in  the  Mississippi  Eiver — advised^  that  the  Attorney 
General  be  requested  to  cause  the  i^roper  i^roceedings  to  be 
taken  for  the  release  of  such  stores  with  a  view  to  their  prompt 
transmission  to  the  army.     XXI,  241. 

2.  A  citizen  of  a  State  within  the  theatre  of  the  late  war, 
in  order  to  prevent  the  caj)ture  by  the  enemy  of  a  steamer 
belonging  to  him,  caused  it  to  be  run  up  a  small  stream  and 
concealed.  It  was,  however,  discovered  by  a  i)artisan  force, 
by  which  it  was  dismantled  and  partly  sunk  but  not  held — 
the  owner  continuing  to  assert,  through  an  agent  who  re- 
mained with  it,  his  right  of  property  therein.  Subsequently 
it  was  taken  possession  of,  raised,  refitted  and  used  in  the 
war  by  the  federal  military  authorities.  Upon  an  application 
by  the  owner  at  the  end  of  the  war,  for  its  restoration  and 
compensation  for  its  use,  held  that  not  having  been  in  fact 
taken  from  the  possession  of  the  enemy  it  was  not  subject  to 

1  United  States  v.  Wilder,  3  Sumner,  308  j  The  Merrimac,  1 
Benedict,  201 ;  The  Davis,  10  Wallace,  15. 

-  The  Schooner  Merchant,  4  A.  B.  009  j  Marvin,  Law  of 
Wreck  and  Salvage  §  122. 

2  Marvin  §  122  j  2  Parsons'  Maritime  Law,  625. 


SECRETARY  OF  WAR.  445 

a  claim  for  salvage,  such  as  tliat  allowed  for  property  recap- 
tured/or  recovered  from  pirates  j-  but  that  the  sums  ex- 
pended by  the  goverument  in  raising  and  refitting  it  might 
X)roperly  be  offset  against  the  amount  claimed  for  its  use.  XX, 
473,  485. 

3.  The  capture  from  an  enemy  of  enemy's  property,  though  by 
civilians,  does  not  entitle  the  captors  to  salvage.  Thus  where 
a  steamer  belonging  to  the  enemy,  and  which  had  been  used 
by  them  in  the  i>rosecution  of  the  war,  was  removed  from  Xew 
Orleans  just  before  its  occupation  by  the  federal  forces,  and 
concealed  in  Bayou  Jacques  where  it  was  found  and  taken 
possession  of  by  a  detachment  of  United  States  troops  and 
military  employees,  by  whom  a  claim  for  salvage  was  there- 
upon interposed, — held  that  such  claim  was  quite  without  legal 
sanction,  the  steamer  having  become,  upon  capture,  under 
the  provisions  of  s.  1  of  the  Act  of  March  12,  1863,  c.  120,  the 
property  of  the  United  States.    XX,  o6o. 

SECRETARY  OF  WAR. 

It  is  a  fundamental  general  principle  of  our  public  law  that 
all  acts  done  by  and  directions  emanating  from  the  heads  of 
the  executive  departments  in  the  course  of  their  administra- 
tive duties,  are  in  law  the  acts  and  directions  of  the  Presi- 
dent, in  whom  is  reposed  by  the  Constitution  the  entire 
executive  power  of  the  government,  and  wliom  the  heads  of 
departments  (except  where  specially  invested  by  Congress 
with  distinctive  authority  of  their  own^)  simply  act  for  and 
represent.*    Thus  all  orders  made  and  issued  by  the  Secre- 

'  See  The  Amelia,  4  Dallas,  34;  Bas  v.  Tingy,  Id.  37  ;  Tal- 
bot V.  Seeman,  1  Cranch,  1;  The  Adeline,  Id.  244;  Marshall 
V.  Delaware  Ins.  Co.  2  Wash.  54. 

2  Davison  r.  Seal-skins,  2  Paine,  324:  Lea  v.  The  Alexander, 
Id.  4GG. 

^That  a  Secretary  may  have  special  powers  devolved  upon 
him,  iudependently  of  the  President,  by  an  Act  of  Congress — 
see  United  States  v.  Kendall,  5  Cranch  C.  C.  1G3. 

*Lockingtou  v.  Smith,  Peters  C.  C.  472;  United  States  v. 
Benner,  1  Baldwin,  238 ;  Wilcox  v.  Jackson,  13  Peters,  498 , 
United  States  v.  Eliason,  10  Id.  302 ;  The  Confiscation  Cases, 
20  Wallace,  109;  United  States  v.  AYebster,  Daveis,  59; 
United  States  v.  Freeman,  1  Wood.  &  Minot,  51 ;  Locking- 
ton's  Case,  Brightlj;  288 ;  United  States  v.  Cutter,  2  Curtis. 


446  SECRETARY  OF  WAR. 

tary  of  War  in  connection  with  the  government  and  regula- 
tion of  the  military  establishment, — such  as  orders  convening 
general  courts -martial,  or  approving  and  directing  the  execu- 
tion of  the  sentences  or  otherwise  acting  ujjon  the  proceed- 
ings of  such  courts,  or  mitigating  or  wholly  or  partially 
remitting  punishments  imi^osed  thereby  j  or  orders  summa- 
rily dismissing  officers,  or  dropping  for  desertion,  retiring  or 
accepting  the  resignation  of,  officers  ;  or  orders  establishing 
military  reservations,  or  promulgating  army  regulations, 
&c., — are  to  be  regarded  as  the  orders  and  acts  of  the  Presi- 
dent, whom  the  Secretary  of  War  represents  in  the  adminis- 
tration of  his  department ;  the  same  being  i)resumed  to  be 
made  and  issued  with  the  knowledge  and  by  the  direction  of 
the  President,  whether  or  not  he  be  referred  to  therein  as 
having  directed  or  commanded  the  same ;  and  being  equally 
as  valid  and  ojierative  as  if  signed  by  the  hand  of  the  Presi- 
dent himself/  Y,  319;  IX,  44 ;  XXUI,  G54  ;  XXXVII,  050 ; 
XXXYIII,  107,  243;  XXXIX,  29G ;  XLI,  25,  Oil;  XLII, 
209 ;  XLIII,  106. 

As  to  the  executive  authority,  «&c.,  of  the  Secretary  of  War, 
for  special  imrposes,  see  particularly — Fourth  Article  §  3 ; 
One  hundred  and  sixth  Article  §  2  and  note;  One  hun- 
dred AND  FOURTEENTH  ARTICLE  §  3,  5,  6  ;    ARMY  EeGULA- 

TiONS  §  1,  note ;  Bond  §  1,  4 ;  Claims  §  1  and  note,  2,  3,  0 ; 
Clothing — Loss  of  §  2  ;  College  or  University  §  2,  3; 
Contract  §  1, 21, 22, 23, 25,  20,  27, 32 ;  Counsel,  I;  Disburs- 
ing Officer  §  1,  2  ;  Dismissal,  II  §  3 ;  Enlistment  §  2,  3, 
4,  9  ;  General  Staff  ;  Military  Prison  §  2, 3;  Xational 
Cemetery  §  1 ;  Order,  I  §  1 ;  President,  I  §  2 ;  Post 
Trader  §  1,  2,  3,  note,  4,  12 ;  Public  Property — Dispo- 
sition OF,  &c.,  §  2,  3,  4,  7,  11 ;  W^itness  §  11. 

617 ;  Hickev  v.  Huse,  56  Maine,  495 ;  McCalPs  Case,  5  Philad. 
289  ;  In  matter  of  Spangler,  11  Mich.  322  ;  I  Opius.  of  Attys. 
Gen.  380 ;  VI  Id.  326,  587,  682  ;  YII  Id.  453,  725 ;  IX  Id. 
463,  465  ;  XI  Id.  398 ;  XIII  Id,  5  ;  XiV  Id.  453. 

^  See  Wilcox  v.  Jackson,  13  Peters,  498  ;  United  States  v. 
Eliason,  16  Id.  302  ;  Hickey  v.  Huse,  56  Maine,  495 ;  II  Opins. 
of  Attys.  Gen.  67 :  XIII  'id.  5 ;  XIV  Id.  453 ;  XY  Id.,  — , 
(Opinions  of  June '6,  1877  and  March  16,  1878;)  G.  O.  35, 
War  Dept.,  1850. 


SELECTION  OF   QUARTERS— SENTENCE,  &C.  447 


SELECTION  OF  aUARTERS. 

See  loss  OF  FILES  ^  3. 
SUSPENSION  §  5. 


SENTENCE  AND  PUNISHMENT— IN  GENERAL. 

[As  to  particular  pimishineuts,  see  especially  Ninety 
Sixth  Article— Discharge — Dismissal,  I — Disqualifi- 
cation— Fine — Forfeiture,  II — Imprisoniment — Loss  of 
Files — Eeduction  to  the  ranks,  II — Reprimand — Soli- 
tary C0NFINE3IENT — SUSPENSION.] 

1.  The  best  approved  practice  of  military  courts  in  deter- 
mining upon  their  sentences  is  believed  to  be  as  follows :  For 
each  member  to  write  a  sentence  and  deposit  it  with  the 
judge  advocate ;  and  for  the  court,  after  all  the  sentences 
haye  been  read  to  it  by  the  judge  advocate,  to  proceed  to 
vote  upon  them  in  the  order  of  their  severity,  beginning  with 
the  least  severe,  until  some  one  of  those  proposed  is  agreed  upon 
by  a  majority  of  votes.  It  is  not  essenfialj  indeed,  that  this  form 
of  voting  should  be  pursued — it  being  open  to  the  court,  in 
its  discretion,  to  adopt  a  different  one.    XXI,  551. 

2.  That,  upon  a  conviction  by  a  majority  vote  of  the  court, 
all  the  members  of  the  court,  those  who  voted  for  an  acquit- 
tal equally  with  those  who  voted  for  conviction,  must  vote 
for  some  sentence, — though  formerly  doubted,  has  long  been 
established  as  a  principle  in  our  military  law.  While  a  mem- 
ber who  voted  for  an  acquittal  cannot  of  course  be  compelled 
to  vote  a  punishment,  yet  his  persistent  refusal  to  do  so  would 
be  a  neglect  of  duty,  rendering  him  amenable  to  a  charge 
under  Art.  62.     XXX,  145. 

3.  Where  the  Article  of  War  under  which  the  charge  is 
'  laid  is  mandatory  as  to  the  punishment,  (as  in  the  cases  of 

Arts.  6,  8,  13,  14,  15,  18,  26,  37,  38,  50,  57,  59, 61,  Qo,)  and  the 
sentence  imposes,  in  connection  with  the  mandatory  punish- 
ment, a  further  i^enalty  or  penalties,  this  addition  to  the 
sentence  does  not  affect  its  legality  so  far  as  relates  to  the 
mandatory  punishment :  as  to  this  it  is  valid  and  operative, 
though  as  to  the  rest  it  is  a  nullity.     IV,  283  5  YIII,  296. 

4.  A  punishment,  adjudged  upon  conviction  of  the  accused 


448  SENTENCE  AND  PUNISHMENT— IN    GENERAL. 

on  several  charges,  is  valid  and  operative  provided  it  is  a 
punishment  legally  imposable  on  conviction  of  any  one  of  the 
charges  of  which  the  conviction  is  duly  api^roved  by  the  re- 
viewing authority.  Thus  if  upon  a  conviction  upon  three 
charges, — of  violations  of  Arts.  38,  61  and  62,  respectively, — 
an  officer,  in  connection  with  dismissal,  is  sentenced  to  for- 
feiture of  i^ay,  this  j^unishment,  being  authorized  upon  con- 
viction of  the  third  charge,  though  unauthorized  upon 
conviction  of  either  of  the  others,  will  be  operative  if  the 
finding  on  the  third  charge  is  duly  approved.    XXY,  104. 

5.  A  sentence,  to  be  valid,  must  of  course  rest  upon  an  ap- 
I)roved  finding  of  guilty  of  an  offence  for  which  the  accused 
has  been  tried.  Thus  a  duly  api^roved  finding  of  guilty  on 
one  of  several  charges,  a  conviction  ux)on  which  requu^es  or 
authorizes  the  sentence  adjudged,  will  give  validity  and  effect 
to  such  sentence  although  the  similar  findings  on  all  the  other 
charges  are  disapproved  as  not  warranted  by  the  testimony. 
XI,  67 ;  XII,  30  j  XVI,  70.  But  a  finding  of  guilty  of  a 
specification  to  a  charge  but  not  guilty  of  the  charge  itself 
will  not  support  a  sentence,  unless  indeed  there  is  added  a 
conviction  of  some  lesser  offence  included  in  that  charged. 
YII,  600  ',  IX,  19.    [See  Finding  §  8.] 

6.  In  a  case  where  its  sentence  is  discretionary,  a  court 
martial  may  imi>ose  any  punishment  that  is  sanctioned  by 
usage,  (the  ^'  custom  of  the  service  "  referred  to  in  Art.  84,) 
although,  (in  cases  of  soldiers,)  the  same  may  not  be  included 
in  the  list  of  the  more  usual  punishments  contained  in  par. 
895  of  the  Army  Eegulations.  lY,  131,  217  -,  XXII,  555 ; 
XXIY,  192,  479. 

7.  Article  YIII  of  the  Amendments  to  the  Constitution 
j)rohibits  the  infliction  of  '^  cruel  and  unusual  i^unishmeuts." 
While  this  provision  does  not  necessarily  govern  courts-martial 
inasmuch  as  they  are  not  a  part  of  the  judiciary  of  the  United 
States,^  (see  Court  Martial,  I  §  1,)  it  should  of  course  be 
observed  as  a  general  rule.     Thus  where  for  an  offence  not 

^That  the  provisions  of  the  Yth,  YIth,  and  Ylllth  Amend- 
ments to  the  Constitution,  relating  to  criminal  proceedings, 
api^ly  only  to  the  courts,  &c.,  of  tlie  United  States — see 
Barron  v.  Mayor  of  Baltimore,  7  Peters,  243 ;  Ex  parte  Wat- 
kins,  Id.  573 ;  Twitched  v.  The  Connnon wealth,  7  Walhice,  326; 
Edwards  v.  Elliott,  21  Id.  557 ;  Walker  v.  Sauvinet,  2  Otto, 
90  J  Pearson  v.  Yewdall,  5  Id.  294;  1  Bish.  Cr.  L.  §  725. 


SENTENCE  AND  PUNISHIVIENT — IN  GENERAL.  449 

peculiarly  aggravated^  a  court  martial  imposed  upou  a  soldier, 
in  connection  with  a  forfeiture  of  pay  for  six  months,  the  fur- 
ther penalty  of  carrying  a  loaded  knapsack  ^Yeighing  twenty- 
four  pounds,  every  alternate  hour  from  sunrise  to  sunset  of  each 
day,  (Sundays  excepted,)  during  that  i^eriod,  held  that  this  pun- 
ishment was  excessive  and  exceptional,  and — the  same  having 
been  suffered  by  the  soldier  for  three  months — recommended 
that  its  unexpired  term  be  at  once  remitted.     XXVI,  520. 

8.  The  punishment  of  ball  and  chain,  though  sanctioned 
by  the  usage  of  the  service,  should,  in  the  ojnnion  of  the 
Judge  Advocate  General,  be  imi^osed  only  in  extreme  cases. 
Its  remission  has  in  general  been  recommended  by  him  except 
in  cases  of  old  ofi'enders  or  aggravated  crime,  where  deemed 
serviceable  as  a  means  of  obviating  violence  or  preventing 
escape.  XXVI,  508,  C31,  CG2,  GG4;  XXVIII,  10,  03,  501, 
532 ;  XXIX,  9.  This  i)enalty  has,  (as  have  also  those  of  shav- 
ing the  head  and  drumming  out  of  the  service,)  become  rare  in 
our  army,  since  the  further  cori)oral  i)unishment  of  branding 
or  marking  has  been  exxDressly  prohibited  by  statute.^ 

9.  Military  duty  is  honorable,  and  to  imi)ose  it  in  any  form 
as  2b punishment  must  tend  to  degrade  it,  to  the  i)rejudice  of  the 
best  interests  of  the  service.  Thus  advised  that  a  sentence  '  to 
do  extra  duty'  for  a  certain  term  would  properly  be  disap- 
proved. XIII,  006.  So  advised  of  sentences  imposing  '  guard 
duty'  for  certain  periods.  IV,  402 ;  XXVI,  507.  So  advised  of 
a  sentence  imposing,  in  connection  with  a  term  of  confinement 
in  charge  of  the  guard,  the  i)enalty  of '  sounding  all  the  bugle 
calls  at  the  post  during  the  same  period.'  XXXVII,  499.  So 
advised  in  regard  to  a  sentence  which  required  a  deserter — not 
for  the  puri)ose  of  making  good  the  time  lost  hy  his  desertion 
but  as  a  imnisJwient — to  serve  for  an  additional  year  after  the 
expiration  of  his  term  of  enlistment.^    XIV,  39G. 

10.  Where,  while  an  officer  or  soldier  is  undergoing  a  cer- 
tain sentence,  he  is  again  brought  to  trial  for  a  military 
offence,  and  a  further  sentence  is  adjudged  him,  imposing  a 

^  By  a  provision  of  the  Act  of  June  G,  187^2,  now  incorporated 
in  the  98th  Article  of  War. 

^  See — as  in  accord  with  the  spirit  of  this  paragrajih — the 
following  Orders:  G.  0.  M.  O.  329,  AVar  Dept.,  18G4;  G.  0. 17, 
Dept.  of  the  Missouri,  18G1 ;  do.  ijij,  Army  of  the  Potomac,  18G2 ; 
do.  3,  Dept.  of  the  Northwest,  18G4;  do.  49,  Middle  Dept.,  18G4. 

29  D 


450    SENTENCE  AND  PUNISHMENT — IN  GENERAL. 

punislimeut  of  tlie  same  species  as  that  which  is  being  exe- 
cuted,— it  is  the  general  rule  of  the  service  that  the  second 
sentence  is  to  be  regarded  as  cumulative  ui)on  the  first,  and 
that  its  execution  is  to  commence  when  the  execution  of  the 
first  is  completed.  This,  whether  or  not  the  court,  in  the 
second  sentence,  may  have  in  terms  specified  that  the  second 
punishment  should  be  additional  to  the  first ;  such  second 
punishment  being  made  cumulative  by  operation  of  law  irre- 
spective of  any  direction,  (and  such  direction  is  in  fact  rarely 
expressed,)  in  the  sentence.  XXXVIII,  143, 409,  55G ;  XLIII, 
102.    [See  Imprisonment  §  IG,  17.] 

11.  Upon  the  conviction  of  an  ofi&cer  or  soldier  under  a 
charge  of  a  crime,  such  as  manslaughter,  robbery,  larceny, 
&c.,  to  the  prejudice  of  good  order  and  military  discipline^  while 
the  statute  of  the  United  States  or  State,  providing  for  its 
punishment  as  a  civil  offence,  may  well  be  referred  to  as  indi- 
cating the  nature  and  extent  of  the  punishment  deemed 
proi^er  for  the  same  by  the  civil  authorities,  the  punishment 
to  be  imposed  by  the  court  martial  should  nevertheless  be 
measured  less  by  the  criminality  of  the  act  as  a  civil  offence 
than  by  its  gravity  as  a  breach  of  military  discipline.  Thus 
where  a  soldier,  having  been  brought  to  trial  before  a  civil 
court  for  the  homicide  of  another  soldier,  and  inadequately  sen- 
tenced, was  subsequently  tried  by  a  general  court  martial  for 
the  military  offence  involved  in  his  act,  lield  that  the  court  would 
only  i^roperl}'  impose  upon  him  a  i^enalty  proportioned  to  the 
injury  done  to  the  good  order  and  discipline  of  the  service,  and 
should  not,  by  an  excessive  xninishment,  attempt  to  compen- 
sate for  the  over-lenient  judgment  of  the  civil  court.   XLI,  188. 

12.  The  word ''  month  "  or  ^'  months,"  employed  in  a  sentence, 
is  to  be  construed  as  meaning  calendar  month  or  months ;  the 
same  significance  being  given  to  the  term  as  is  now  commonly 
given  to  it  in  the  construction  of  American  statutes  in  which 
the  word  is  employed.^  The  old  doctrine  that  ''  mouth,"  in  a 
sentence  of  court  martial,  meant  lunar  mouth,  has  long  since 
ceased  to  be  accepted  in  our  military  law.  XXVI,  374.  Held 
that  the  term  "  days,"  in  a  sentence  of  a  regimental  court, 
requiring  a  soldier  "  to  walk  four  days  with  a  loaded  knap- 
sack," &c.,  did  not  include  nights,  and  should  not  be  consid- 

'  See  Moore  v.  Houston,  3  Sergt.  &  Eawle,  184 ;  Sedgwick, 
Stat.  &  Const.  L.  420-421 ;  also  1  Eev.  Sts.  of  New  York  §  4. 


SENTENCE  AND   PUNISHMENT— IN   GENTERAL.  451 

erecl  as  embracing  any  longer  period  of  tlie  24  hours  tlian 
that  included  between  reveille  and  retreat.     XXYI,  518. 

13.  It  is  a  i^jrinciple  of  military  law  that  no  military  authority, 
whether  the  reviewing  officer,  or  other  commander,  can  add  to  a 
punishment  as  imposed  by  a  court  martial.  Neither  forfeiture 
of  pay,  for  example,  nor  line,  nor  a  corporal  punishment,  can  be 
inflicted  upon  an  officer  or  soldier  wiiere  the  sentence  fails  to 
adjudge  it.  And  neither  the  fact  that  the  punishment  awarded 
by  the  court  is  regarded  as  an  inadequate  one,'  nor  the  fact  that 
the  i)eriod  is  a  time  of  war  j  can  affect  the  api^lication  of  the  prin- 
ciple. YIII,  444,  557 ;  XX,  430 ;  XXI,  257.  Thus,  where  the 
13unishment  im^iosed  by  the  sentence  was  to  carry  a  weight  of 
twenty  pounds,  held  that  it  would  be  illegal  for  the  officer 
charged  with  the  execution  of  the  sentence  to  increase  the 
weight  to  thirty  pounds.  XXYII,  511.  So  where  the  sentence 
imposed  simx3ly  a  forfeiture  of  pay,  held  that  it  was  adding  to  the 
I)uuishment  to  order  it  to  be  executed  at  a  military  i^rison.  XI, 
98 ;  XX,  340.  So  held  that  a  sentence  of  simple  "  confinement " 
for  a  certain  time  did  not  authorize  the  imposition,  in  connection 
with  its  execution,  of  hard  labor.  XXI,  310.  So  held  illegal  to 
execute  a  sentence  of  ^confinement  in  a  military  i)rison'  by 
committing  the  party  to  a  State  penitentiary.  XXIX,  G50. 
[And  see  more  particularly,  as  to  adding  to  the  punishment 
in  cases  of  sentences  of  confinement — Imprison3IENT  §§  7,8, 
9.]  Where  an  officer,  on  conviction  of  the  embezzlement  of 
a  certain  sum,  was  sentenced,  without  further  penalty,  to  be 
dismissed  the  service,  held  that  the  department  commander, 
in  approving  the  sentence,  could  not  legally  order  him  to  be 
confined  at  his  station  till  he  should  make  good  the  amount 
embezzled,  since  this  would  be  an  adding  to  the  punishment 
imi)osed  by  the  court,  as  well  as  an  illegal  exercise  of  power 
over  a  civilian.     XXVIII,  122.     And  see  XI,  405. 

14.  A  military  punishment  can  legally  be  imposed  only  by 
sentence  of  court-martial  after  a  regular  trial  and  convic- 
tion.    Such  a  punishment  cannot  be  imi)Osed  by  a  mere  order.- 

^Comi)are  Barwis  v.  Keppel,  2  Wilson,  314. 

-We  have  in  our  military  law  no  system  of  disciplinary 
l^unishments.  Except  in  a  few  cases,  unimportant  in  them- 
selves or  of  rare  occurrence  in  practice,  (see  Arts.  25,  52,  ^jS 
and  54,)  our  code  recognizes  no  punishments  other  than  such 
as  may  be  adjudged  upon  trial  and  conviction  by  a  military 
court.     In  the  General  Orders  i)unishments  inflicted  merely 


452  SENTENCE   AND  PUNISH3IENT — IN   GENERAL. 

Tlins  a  reviewing  officer  who  lias  disapproved  tlie  sentence 
imposed  by  a  court  martial  in  any  case,  cannot  thereupon  or- 
der an  independent  punishment  to  be  suHered  by  the  accused. 
VI,  105  5  VIII,  344,  505,  020 ;  XI,  205,  310.  So,  such  an  offi- 
cer, in  disapproving  an  acquittal,  cannot  order  that  the  ac- 
cused be  confined  or  otherwise  punished.  II,  44G,  525  5  XII, 
249.     So,  a  commander,  in  restoring-  a  deserter  to  duty  without 

at  the  will  of  military  commanders  have  been  repeatedly  con- 
demned as  illegal  and  forbidden  in  i^ractice.  [See  G.  O.  81, 
(A.  G.  O.,)  1822 ;  do.  53,  Hdqrs.  of  Army,  1842 ;  do.  2, 4,  War 
Dept.,  1843;  do.  39,  Hdqrs.  of  Army,  1845;  do.  645,  War 
Dept.,  1865;  do.  49,  Northern  Dept.  1864;  do.  22,  Dept.  of 
the  Platte,  1867;  do.  44,  Id.  1871;  do.  63,  Dept.  of  Dakota, 
1868;  do.  106,  Id.  1871;  do.  40  Dept.  of  the  East,  1868;  G. 
C.  M.  0. 112,  Id.  1870 ;  do.  90,  Id.  1871 ;  G.  0. 14,  Dept.  of  the 
South,  1869;  do.  1,  23,  93,  Id.  1873;  do.  9,  Mil.  Div.  of  the 
Atlantic,  1869;  do.  31,  Id.  1873;  do.  23,  Dept.  of  the  Lakes, 
1870;  G.  C.  M.  O.  50,  Dept.  of  the  Missouri,  1871.J  Officers 
who  have  resorted  to  snch  punishments  have  been  repeatedly 
bronght  to  trial  and  sentenced.  [See  G.  O.,  (A.  &  I.  G.  O.,) 
of  June  30, 1821;  do.  8,  (A.  G.  ().,)  1826;  do.  28,  Id.,  1829;  do. 
64,  Id.  1832;  do.  2,  6,  GS,  War  Dept,  1843;  do.  39,  Hdqrs.  of 
Army,  1845 ;  do.  53,  Dept.  of  Va.  &  Xo.  Ca.  1864 ;  do.  22,  Dept. 
of  the  Platte,  1867;  do.  9  Mil.  Div.  of  the  Atlantic,  1869;  do. 
14,  Dept.  of  South,  1869;  G.  0.  M.  0. 50,  Dept.  of  the  Missouri, 
1871.]  And  enlisted  men,  tried  and  sentenced  for  insubordinate 
conduct,  where  such  conduct  has  been  induced  or  aggravated 
by  illegal  corporal  punishments  inflicted  upon  tliem  by  supe- 
riors, have  commonly  had  their  sentences  remitted  or  miti- 
gated, or  altogether  disapproved.  [See  G.  0. 49, 76,  Xorthern 
Dept.,  1864;  do.  40,  Dept.  of  the  East,  1868;  G.  0.  M.  O.  90 
Id.,  1871;  G.  O.  6'^,  Dept.  of  Dakota,  1868;  do.  76,  Id.,  1871; 
G.  C.  M.  O.  45  Id.,  1880;  do.  93,  Dept.  of  the  South,  1873.]  In 
proper  cases  of  course,  as  where  violence  is  employed,  escax)e 
attempted,  &c.,  by  soldiers  who  are  mutinous  or  disorderly,  or 
in  arrest  under  charges,  force  may  be  nsed  against  them  ac- 
cording to  tbe  necessities  of  the  case.  [See  Manslaughter 
§  4;  also  G.  O.  53,  Hdqrs.  of  Army,  1842;  do.  2,  War  Dept., 
1843;  G.  C.  M.  O.  47,  Hdqrs.  of  Armv,  1877;  G.  O.  53, 
Dept.  of  Va.  &  Xo.  Oa.,  1864 ;  do.  40,  Dept.  of  the  East,  1868; 
G.  G.  M.  O.  112,  Id.,  1870;  do.  90  Id.,  1871;  G.  O.  23,  Dept. 
of  the  Lakes,  1870;  do.  106,  Dept.  of  Dakota,  1871;  do.  93, 
Dept.  of  the  South,  1873;  do.  31,  Mil.  Div.  of  the  Atlantic, 
1873 ;  G.  0.  M.  O.  37,  Dept.  of  Texas,  1880.]  This,  however, 
is  ])revenUon  and  restraint,  not  lyunishment :  the  authority  to 
use  the  needful  force  in  such  cases  will  not  justify  the  supe- 
rior, when  the  offender  is  repressed  or  apprehended,  in  sub- 
jecting him  to  arbitrary  punitory  treatment. 


SENTINEL.  453 

trial  according  to  par.  150,  Army  Eegulations,  is  not  author- 
ized to  require  him  to  submit  to  a  i^unishment,  as  a  condition 
to  his  being  so  restored,  or  otherwise.    XVI,  83. 

15.  A  legal  sentence  of  court  martial,  when  once  duly  exe- 
cuted^ cannot  be  reached  by  a  pardon,  nor  revoked,  recalled, 
modified  or  replaced  by  a  milder  punishment  or  other  pro- 
ceeding, either  by  the  Executive  or  by  Congress.^  The  only 
remedy  for  a  party  who  has  suffered  injustice  from  such  a  sen- 
tence is  either  a  new  appointment  to  the  Army  by  the  President 
or  some  legislation  within  the  prov^ince  of  Congress  relieving 
or  indemnifying  him  for  and  on  account  thereof.  XLI,  53S ; 
XLII,  320.  [See  Dismissal,  I  §  5,  G  ;  Forfeiture,  II  §  14 ; 
Pardon  §  4 ;  President,  II  §  2  j  Eeviewing  Officer  §  8.] 

See  seventeenth  ARTICLE  $  1. 
THIRTY  EIGHTH  ARTICLE  $  10. 
FIFTY  FOURTH  ARTICLE  ^  2, 5. 
FIFTY  EIGHTH  ARTICLE  $  5. 
SIXTY  SIXTH  ARTICLE. 
EIGHTY  THIRD  ARTICLE. 
EIGHTY  SIXTH  ARTICLE  $  3. 
ONE  HUNDRED  AND  SECOND  ARTICLE  $  6. 
COURT  MARTIAL,  I  $  3. 
DISCHARGE  §  8,  note. 
MILITARY  COMMISSION,  III. 

SENTINEL. 

Eespect  for  the  person  and  office  of  a  sentinel  is  as  strictly 
enjoined  by  military  law  as  that  recxuired  to  be  paid  to  an  offi- 
cer. As  it  is  expressed  in  the  Army  Eegulations — paragraph 
417 — "  all  persons  of  whatever  rank  in  the  service  are  re- 
quired to  observe  respect  toward  sentinels."  Invested  as  the 
private  soldier  frequently  is,  while  on  his  post,  with  a  grave 
responsibility,  it  is  i)roper  that  he  should  be  fully  j)rotected 
in  the  discharge  of  his  duty.  To  permit  any  one,  of  whatever 
rank,  to  molest  or  interfere  with  him  while  thus  employed, 
without  becoming  liable  to  a  severe  penalty,  would  obviously 

^  The  well  established  principles — that  mere  irregularities  in 
the  proceedings  will  not  aflect  the  validity  of  an  executed 
sentence,  and  that  a  legal  sentence  once  duly  confirmed  and 
executed  is  "no  longer  subject  to  review  hy  the  President" — 
so  pointedly  set  forth  (in  1843)  in  IV  Opins.  274 — are  illus- 
trated in  two  recent  opinions  of  the  Attorney  General  of  June 
(3,  1877  and  January  19, 1878,  (XY  OpinSr  — .) 


454       SEPARATE  BRiaADE — SOLITARY    CONFINEMENT. 

establisli  a  precedent  highly  prejudicial  to  the  interests  of 
the  service.  So^  where,  in  time  of  war,  a  lieutenant  ordered  a 
soldier  of  his  regiment,  who  had  been  i^laced  on  duty  as  a 
sentrj^  by  sui^erior  authority,  to  feed  and  take  care  of  his 
horse,  and,  ui)on  the  latter  resijectfuUy  declining  to  leave  his 
l)Ost  for  the  i)urpose,  assailed  him  with  abusive  language — 
lield  that  a  sentence  of  dismissal  imposed  by  a  court  martial 
upon  such  officer,  on  his  conviction  of  this  offence,  was  fully 
justified  by  the  requirements  of  military  discipline.  XYIII, 
598. 

SEPARATE  BRIGADE. 

See  seventy  THIRD  ARTICLE. 

ONE  HUNDRED  AND  FOURTH  ARTICLE  $  6. 

SIGUAL  CORPS. 

Held^  (November,  1875,)  that  under  the  i>ro visions  of  the 
Act  of  June  10,  1874,  c.  285,  and,  a  fortiori^  of  the  Act  of 
March  3,  1875,  c.  133,  the  stated  force  of  the  enlisted  men  of 
this  Cori)s  was  clearly  intended  to  be  maintained  as  in  addi- 
tion to  or  rather  independent  of  the  enlisted  force  of  the 
army  at  large,  fixed  at  25,000  men.^    XXXYII,  174. 

See  eighty  FIRST  ARTICLE  §  1. 
EVIDENCE  ^  9. 
EXTRA  DUTY  PAY  ^  1. 
MUNITIONS  OF  WAR. 
PAY  AND  ALLOWANCES  §  15. 

SOLITARY  COnFmEMEHT. 

Held  that  a  sentence  of  two  months'  confinement,  which 
prescribed  that  the  confinement  for  two  days  out  of  every 
three  should  be  solitary,  Avas  unauthorized  as  transcending 
the  proportion  fixed  by  the  Army  Eegulations,  par.  895 ; — 
such  sentence  in  fact  requiring  that  the  confinement  should 
be  solitary  for  forty  days  out  of  sixty,  while  the  Eegulations 
authorize  but  eighty  four  days  of  solitary  confinement  in  an 
entire  year.    XXVIII,  329. 

^This  intention  has  been  since  quite  unmistakably  ex- 
pressed, in  the  Appropriation  Acts  of  June  23, 1879,  and  May 
4,  1880. 


SPECIF  ICATIOIs' — SPY.  455 


SPECIFICATION. 


See  CHAPtGE, 

FINDING  $  1,  2. 

SPY. 

[Sec.  1343,  Rev.  Sts.  All  persons  who,  in  time  of  ^var,  or  of  rebellion 
ajainst  the  supreme  authority  of  the  United  States,  shall  he  found  lurking 
oi  acting  as  spies,  in  or  about  any  of  the  fortifications,  posts,  quarters,  or 
eicampments  of  any  of  the  armies  of  the  United  States,  or  elsewhere,  shall 
b«  triable  by  a  general  court-martial,  or  by  a  military  commission,  and 
slall,  on  conviction  thereof,  suffer  death.] 

1.  Sec.  1343  is  one  of  the  few  provisions  of  our  law  autlior- 
idng  the  trial,  in  time  of  war,  of  civilians,  by  military  coiuts. 
'The  majority,  however,  of  the  persons  brought  to  trial  as 
^ies  during  the  late  war  were  members  of  the  army  of  the 
enemy.  The  gravamen  of  the  offence  of  the  spy  is  the  treach- 
ery or  deception  practised — the  being  in  disguise  or  acting 
under  false  pretences.^  An  officer  or  soldier  of  the  enemy  dis- 
covered "lurking"  in  or  near  a  cami)  or  post  of  our  army  dis- 
guised in  the  uniform  or  overcoat  of  a  U.  S.  soldier  is  prima 
facie  a  spy,  and  liable  to  trial  as  such.  XIV,  579.  So  an 
officer  or  soldier  of  the  enemy  who  without  authority  and 
covertly  penetrates  within  our  lines  disguised  in  the  dress  of 
a  civilian,  may  ordinarily  be  presumed  to  have  come  in  the 
character  of  a  spy,  unless,  by  satisfactory  evidence  that  he 
came  for  some  comi)aratively  venial  purpose,  as  to  visit  his 
family,  and  not  for  the  purpose  of  obtaining  information,  he 
may  rebut  the  i)resumption  against  him  and  show  that  his 
offence  was  a  sim^Dle  violation  of  the  laws  of  war.  II,  377, 
580 ;  lY,  307  •,  Y,  315,  572 ;  YII,  06. 

2.  Where  an  officer  of  the  enemy's  army,  arrested  while 
lurking  in  the  State  of  New  York  in  the  disguise  of  a  citizen's 
dress,  was  shown  to  have  been  in  the  habit  of  passing,  for 
hostile  purposes,  to  and  from  Canada,  where  he  held  com- 
munication with  agents  of  the  enemy,  and  conveyed  intelli- 
gence to  them — JwJd  that  he  was  amenable  to  trial  as  a  spy 
before  a  militarj^  court  under  the  statute.     XI,  474. 

'  Halleck,  Int.  Law,  406-7. 


i56  SPY. 

3.  An  officer  of  tlie  enemy's  army^  liavmg  come  secretly 
witliin  our  lines,  proceeded  from  Baltimore  tbrongh  a  part  of 
tlie  coantr}^  containing  numerous  military  i^osts,  &c.,  to 
Detroit,  where  he  entered  Canada,  communicated  with  the 
enemy's  agents  there  and  received  from  them  letters  to  bs 
conveyed  to  Richmond.  On  his  return,  while  travelling  undo* 
an  assumed  name,  and  disguised  by  citizen's  dress  and  ai 
artificial  coloring  of  the  hair,  he  was  recognized  and  arrestee, 
and  upon  his  arrest  destroyed  at  once  his  pai^ers.  Reld  that 
he  might  properly  be  brought  to  trial  and  his  ofience  investi- 
gated under  a  charge  of  being  a  spy,  and  that  his  claim  that 
he  Avas  merely  a  bearer  of  official  dispatches  was  entitled  1o 
but  slight  consideration  in  view  of  the  fact  that  he  had  takea 
the  first  opportunity  to  destroy  the  evidence  on  which  sudi 
claim  was  based.     XY,  14. 

4.  Where  a  soldier  of  the  enemy's  army,  separated  from  t 
on  its  retreat  from  Maryland  in  1864,  was  arrested,  after 
wandering  about  in  disguise  within  our  lines  for  a  montl^ 
seeking  for  an  oj^portunity  to  make  his  way  to  the  enemy'i 
forces  and  join  his  regiment,  held  that  he  was  not  properly 
chargeable  with  the  ofience  of  the  si)y  but  should  be  treated 
as  a  prisoner  of  war.    XI,  82. 

5.  A  mere  violation  of  the  law  of  war  prohibiting  inter- 
course between  belligerents,  committed  by  a  civilian  in  com- 
ing without  authority  within  our  lines  from  the  enemy's 
country,  cannot  proi)erly  be  regarded  as  attaching  to  him  the 
character  of  the  spy.     IX,  95. 

G.  The  si^y  must  be  taken  in  flagrante  delicto.  If  he  suc- 
ceeds in  making  his  return  to  his  own  army  or  country,  the 
crime,  according  to  a  well  settled  principle  of  public  law, 
does  not  follow  him,  and,  if  subsequently  captured  in  battle 
or  otherwise,  he  cannot  properly  be  brought  to  trial  as  a 
spy.i     y,  280,  248  5  IX,  100;  XXIII,  459. 

^  The  leading  case  on  this  point  in  this  country  is — In  the 
matter  of  Martin,  reported  in  45  Barb.  142,  and  31  How.  Pr. 

228. 


STATEMENT   OF  ACCUSED.  457 


STATEMENT  OF  ACCUSED. 

1.  In  any  case  tried  by  court  martial  the  accused  may,  if 
he  thinks  proper,  (and  whether  or  not  he  has  taken  the  stand 
as  a  witness,^)  present  to  the  court  a  statement  or  address 
either  verbal  or  in  writing.  Such  statement  is  not  evidence:^ 
as  a  personal  defence  or  argument,  however,  it  may  and 
IDroperly  should  be  taken  into  consideration  by  the  court. 
XX,  432. 

2.  While  the  statement  is  not  evidence,  and  the  accused  is 
not  in  general  to  be  held  bound  by  the  argumentative  declara- 
tions contained  in  the  same,  yet,  if  he  clearly  and  unequivocally 
admits  therein  facts  material  to  the  prosecution,  such  may 
I)roperly  be  viewed  by  the  court  and  reviewing  officer  as  prac- 
tically in  the  case.^  XXVII,  407.  So,  where  the  accused, 
in  his  statement,  fully  admits  that  certain  facts  existed  sub- 
stantially as  proved,  he  maj'  be  regarded  as  waiving  objec- 
tion to  any  irregularity  in  the  form  of  the  j)roof  of  the  same. 
XXVII,  385. 

3.  A  large  freedom  of  expression  in  his  statement  to  the 
court  is  allowable  to  an  accused,  esi)ecially  in  his  comments 
upon  the  evidence.  So,  an  accused  may  be  permitted  to 
reflect  within  reasonable  limits  upon  the  apparent  animus  of 
his  accuser  or  prosecutor,  though  a  superior  officer  and  of 
high  rank.  But  an  attack  upon  such  a  superior,  oi  'a^  jyersonal 
character  and  not  apposite  to  the  facts  of  the  case,  is  not 
legitimate )  nor  is  language  of  marked  disrespect  employed 
toward  the  court.  Matter  of  this  descrix)tion  may  indeed  be 
required  by  the  court  to  be  omitted  hy  the  accused  as  a  con- 
dition to  his  continuing  his  address  or  fihng  it  with  the  record. 
XXVII,  520. 

4.  It  is  settled  in  our  military  i^rocedure  that  the  closing 

^See  G.  C.  M.  O.  3,  Dept.  of  the  Missouri,  1880. 

-  That  a  sworn  statement  cannot  be  made  to  serve  as  the 
testimony  of  the  accused  as  a  icitncss  under  the  Act  of  March 
1(),  1878— see  Witness  §  2. 

^  Similarly  as  a  fact  clearly  admitted  or  assumed  in  the 
course  of  a  trial  may  be  considered  as  much  in  the  case  as  if 
it  had  been  expressly  proved.  See  Paige  v.  Fazackerly,  3G 
Barb.  392. 


458  STATUTES— CONSTRUCTION  OF. 

statement  or  argument,  where  addresses  are  presented  on 
botli  sides,  shall  be  made  on  the  part  of  the  prosecution. 
The  judge  advocate,  however,  may,  and,  in  i^ractice,  not 
rarel}'  does,  waive  the  right  of  oflering  any  argument  or 
remarks  in  reply  to  the  address  of  the  accused.  On  the 
other  hand,  the  accused  may  waive  the  right,  and  the  judge 
advocate  alone  present  a  "statement."    XI,  377. 

5.  The  imhllcaf ion  by  an  officer,  after  his  acquittal,  of  the 
statement  presented  by  him  to  the  court  on  his  trial,  in  which 
he  reflected  in  violent  and  vituperative  language  upon  the 
motive  and  conduct  of  an  ofiicer  of  the  same  regiment,  his 
accuser,  and  denounced  him  as  devoid  of  the  instincts  of  a 
gentleman  and  a  disgrace  to  the  service, — held  to  constitute 
a  serious  military  offence,  to  the  prejudice  of  good  order  and 
military  discipline,  if  not  indeed  a  violation  of  Art.  01  j  and 
further  that  it  was  no  defence  to  such  a  ijublication  that  the 
court  on  the  trial  had  permitted  the  statement  to  be  made 
and  recorded.  XXXIII,  582  -,  XXXIV,  186.  [See  Sixty  Sec- 
ond Article  §  5.] 

See  judge  ADVOCATE  §  21. 
PLEA  «5  3,  6. 


STATUTES— COIJSTEUCTIO^  OF. 
I.  Miscellaneous  enactments. 

1.  In  api)lying  the  Articles  of  War  to  jmrticular  cases,  the 
terms  of  the  same  should  in  general  be  strictly  construed  as 
against  the  United  States  and  in  favor  of  the  i^arty  accused, 
and  a  case  should  not  be  treated  as  within  the  penal  i^ro- 
visions  of  an  Article  unless  it  is  quite  clearly  included  by  the 
words  of  description  employed.^     XXXYIII,  199. 

2.  It  is  well  settled  that  the  word  ''  may,"  in  a  statute  con- 
ferring i)ower  upon  a  public  officer,  is  to  be  construed  as 
equivalent  to  "must"  or  "shall,"  where  the  enactment  im- 
poses a  i)ublic  duty,  or  makes  provision  for  the  benefit  of 
individuals  whose  rights  cannot  be  effectuated  without  the 

^Criminal  statutes  are  inelastic,  and  cannot  be  made  to 
embrace  cases  plainly  without  the  letter,  though  within  the 
reason  and  i)olicy  of  the  law."     State  v.  Lovell,  23  Iowa,  304. 


STATUTES— CONSTRUCTION  OF.  459 

exercise  of  the  power.^  So  where  the  Secretary  of  War  was 
"  authorized  "  by  an  Act  of  Congress  to  reopeu  a  settlement 
previously  made  with  a  railroad  company  for  government 
transportation,  &c.,  adjust  the  same  upon  a  certain  stated 
basis,  and  issue  his  warrant  on  the  treasury  for  such  amount 
as  might  be  found  due  the  comjiany  on  such  re  adjustment, 
held  that  the  statute  did  not  confer  a  mere  discretionary 
authority  but  was  mandatory  upon  the  Secretary.'*  XLII, 
328. 

3.  While  there  is  a  distinction  between  a  statute  in  which 
a  public  official  is  ''authorized,"  and  one  in  which  he  is  "re- 
quired" or  "directed,"  to  perform  a  certain  act,  in  that  a 
discretion  is  in  general  conferred  by  a  statute  of  the  former 
class ;  yet  where  the  Secretary  of  War  was  authorized  by  an 
Act  of  Congress  to  sell  a  portion  of  a  military  reservation 
"at  such  times  as  he  may  deem  most  advantageous  to  the 
interests  of  the  government,  and  in  such  manner  as  herein- 
after provided,"  and  further  i)rovision  was  made  in  the  Act 
in  regard  to  the  laying  out  of  a  i^art  of  the  land  in  lots 
before  sale,  and  as  to  the  mode  of  sale  and  the  notice  to  be 
given  of  the  same,  held  that  it  was  evidently  contemplated 
by  Congress  that  the  sale  should  be  made  at  some  time — a 
public  duty  being  thus  far  imposed,  and  accordingly  that  the 
Secretary  could  not  i)roperly  omit  to  proceed  with  such  sale 
for  any  considerable  period,  unless  it  was  found  to  be  clearly 
for  the  public  interests  to  postpone  the  same.    XXVII,  ^25. 

4.  Held  that  the  remarks  of  members  of  Congress  in  a  de- 
bate on  a  Bill,  as  to  the  purpose  of  the  proposed  measure,  the 
reasons  for  adopting  the  same,  &c.,  did  not  ordinarily  consti- 
tute a  safe  basis  for  the  accurate  construction  of  the  same 
after  it  had  become  enacted.^    XXXVII,  G5(J. 

^See  Minor  v.  Mechs.  Bk.  1  Peters,  46;  Supervisors  v. 
IJnited  States,  4  Wallace,  435,  and  cases  cited ;  also  Fowler 
V.  Firkins,  77  Ills.  271 ;  Kans.  P.  P.  P.  Co.  v.  Peynolds,  8 
Kaiis.  028;  People  v.  Comrs.  of  Buffalo  Co.,  4  Xeb.  150. 

On  the  other  hand,  see  Fifty  Eighth  xVrticle  §  2, — for 
an  instance  in  which  "shall"  in  a  statute  is  interpreted  as 
meaning  mai/. 

-  See  concurring  opinion  of  the  Solicitor  General  of  April 
13,  1877,  (XV  Opins.  — ;)  also  Supervisors  v.  United  States, 
4  Wallace,  435. 

=*"In  expounding  a  law,  the  judgment  of  the  court  cannot 
be  intluenced  in  any  degree  by  the  construction  placed  upoij  it, 


460  STATUTES— CONSTRUCTION   OF. 

5.  Where  a  statute  clearly  requires  a  thing  to  be  done  in  a 
I)articular  mode  and  form,  the  same  cannot  legally  be  varied 
from  in  material  details  by  the  officer  charged  with  the  per- 
formance.^ Thus,  where  Congress  appropriated  certain  funds 
for  a  Bridge,  which,  it  was  exi)ressly  specified  in  the  Act,  was 
to  be  erected  according  to  a  certain  designated  plan  which 
had  been  recommended  for  the  i^ur^^ose  by  the  Chief  of  Ord- 
nance,— field  that  the  construction  of  the  Bridge  in  accord- 
ance with  such  a  i:>lan  was  a  condition  to  the  due  expenditure 
of  the  money  appropriated,  and  that  the  plan  could  not  legally 
be  departed  from  in  the  construction.^    XXYIII,  664. 

of  .individual  members  of  Congress,  in  the  debate  which  took 
place  on  its  passage,  nor  by  the  motives  or  reasons  assigned 
by  them  for  supporting  or  opposing  amendments  that  were 
offered."  Taney  C.  J.  in  Aldridge  v.  Williams,  3  Howard,  24. 
So,  in  Lockington's  Case,  Brightly ,  289,  it  was  held  by  the 
Supreme  Court  of  Pennsylvania,  per  Yeates,  J,  as  follows: 
"  I  regard  the  true  meaning  of  the  law,  to  l3e  collected  ex 
visceribus  suis,  as  the  only  correct  ground  of  decision  thereon. 
It  is  of  no  moment,  in  my  idea,  how  it  was  treated  by  differ- 
ent gentlemen  on  the  floor  of  Congress."  And  see  United 
States  i\  Union  P.  E.  E.  Co.,  1  Otto,  79 ;  Leese  v.  Clark,  20 
Cal.  387 ;  Keyport  &c.  Co.  v.  Farmers  «&c.  Co.,  18  N.  Jersey 
Eq.  13 ;  XIII  Opins.  of  Attys.  Gen.  368.  But  it  is  said  by 
Mr.  Justice  Field,  in  Ah  Kow  v.  Xunan,  5  Sawyer,  560,  that 
while  "  statements  in  debate  cannot  be  resorted  to  for  the 
l)urpose  of  explaining  the  meaning  of  the  terms  used,"  the 
same  ''  can  be  resorted  to  for  the  purpose  of  ascertaining  the 
general  object  of  the  legislation  i)roposed  and  the  mischiefs 
sought  to  be  remedied." 

In  a  recent  oi)inion  of  Aug.  23,  1879,  (XYI  Oi^ins,  — ,)  the 
Attorney  General  remarks  that  the  construction  of  a  statute, 
when  doubtful,  may  be  aided  by  a  reference  to  the  debate 
when  the  members  concurred  as  to  the  purpose  of  the  meas- 
ure, but  scarcely  so  when  they  expressed  different  views  on 
the  subject.  In  another  opinion  of  April  24,  1877,  (XY 
Opins.  — ,)  the  Solicitor  General,  in  referring  to  the  general 
rule,  (as  held  in  the  text,)  cites  the  case  of  Bank  of  Pa.  v. 
Commonwealth,  19  Pa.  St.  156,  to  the  effect  that  "it  is  delu- 
sive and  dangerous  to  admit  messages  of  governors,  journals 
of  the  legislature,  or  rei)orts  of  committees,  to  aid  in  constru- 
ing statutes." 

^See  Commissioners  v.  Gaines,  3  Brev.  396. 

^See  concurring  opinion  of  the  Atty.  Gen.  in  XIII  Opins.  78. 


STATUTES— CONSTRUCTIOX  OF.  461 

II.  Proposed  legislation  peoyiding  for  the  restora- 
tion,  &C.,   OF  DISMISSED    OFFICERS,  AND  REFERRED  TO 

THE  Judge  Advocate  General  for  remark. 

6.  Upon  a  Bill,  by  which  it  was  proposed  to  restore  a  dis- 
missed officer  to  the  army  by  declaring  his  '  record  amended 
so  that  he  should  appear  to  have  been  continuously  in  serv- 
ice,'— remarlced  that  such  Bill  was  not  in  a  usual  or  proper 
form  for  efl'ecting  the  object  designed ;  that  the  obliteration 
of  the  record  of  an  officer's  dismissal  on  the  books  or  rolls  of 
the  War  Department  would  be  wholly  inoperative  per  se  to 
reinstate  the  officer;  moreover  that  the  legislative  department 
of  the  government  was  without  authority  to  restore  such  an 
officer  to  the  army  but  could  only  authorize  his  restoration  by 
the  appointing  power.^    XXXVI,  21G. 

7.  Upon  a  Bill  which  authorized  the  Secretary  of  War  to 
give  an  "honorable  discharge"  to  a  dismissed  officer,  as  of 
the  date  of  the  order  of  the  President  approving  the  dismis- 
sal,— remarl'cd  that  as  this  officer  had,  by  his  dismissal,  been 
completely  separated  from  the  army  and  had  become  a  civil- 
ian, he  could  not  be  discharged  from  the  army,  without  being- 
readmitted  to  it,  and  that  he  could  not  be  so  readmitted  with- 
out a  new  appointment,  (see  Dismissal,  I  §  6;)  further  that 
while  the  Bill  might  possibly  be  construed  as  authorizing  the 
Executive  to  reapi)oint  the  officer,  such  construction  would 
be  a  forced  and  unnatural  one, — the  Bill,  as  it  stood,  being 
really  repugnant  to  the  provisions  of  the  Constitution  in  re- 
gard to  appointments, — and  that  it  would  therefore  be  prefer- 
able that  the  Bill  should  be  so  amended  as  simply  and  directly 
to  authorize  the  appointment  of  the  officer  according  to  the 
approved  precedents  of  legislation  in  such  cases.  XXXVIII, 
59. 

8.  Upon  a  Bill  in  which  the  "Secretary  of  War"  was  author- 
ized and  directed  to  restore  a  dismissed  officer  to  the  rank  of 
Captain  as  of  the  date  of  his  dismissal, — remarlced  that  while 
such  Bill,  if  enacted,  might,  in  order  to  give  it  a  legal  effect, 
probably  be  deemed  sufficient  to  confer  upon  the  Executive 
an  authority  to  exercise  the  appointing  power,  yet  that  the 

^  There  was  subsequently  substituted  for  this  BiU  one  au- 
thorizing the  appointment  of  the  officer  in  the  usual  manner, 
which  became  an  Act.  But  see,  in  this  connection,  the  opin- 
ion of  the  Atty.  Gen.  in  a  similar  case  in  XIV  Oi)ins.  418. 


4G2  STATUTES— CONSTRUCTION  OF. 

same  was  in  terms  inadmissible  and  tended  to  establish  a  bad 
pre  cedent  J  and  would  therefore  preferably  be  amended,  so  as 
to  conform  to  the  usual  and  proper  course  of  legislation  in 
such  cases.^    XXXYIII,  61. 

9.  Where  an  Act  of  Congress  authorized  the  President  "to 
restore  "  a  person,  described  as  late  a  paymaster  of  tbe  army, 
"  to  the  Army  Eegister,  for  the  i^urpose  of  being  placed  on 
the  retired  list," — held  that  this  enactment,  though  inaptly 
expressed,  might  properly  be  construed  as  intending  to  exer- 
cise the  power  conferred  upon  Congress  by  Art.  II,  Sec.  2, 
par.  2,  of  the  Constitution,  of  vesting  ''in  the  President 
alone "  the  appointment  of  an  ''inferior"  ofdcerj  and  there- 
fore that  a  simple  appointment  by  the  President  of  this  offi- 
cer, without  any  nomination  to  or  confirmation  by  the  Senate, 
(followed  by  his  retirement  b^^  the  President  with  the  rank 
of  major,)  would  be  a  legal  and  constitutional  exercise  of 
authority,  constituting  as  valid  and  effectual  an  appointment 
and  reinstatement  as  if  the  officer's  name  had  been,  in  the 
first  instance,  sent  to  the  Senate  and  favorably  acted  upon, 
and  a  commission  had  thereupon  been  issued  to  him.  XLII, 
178.  And  similarly  Jield  in  a  case  in  which,  by  Act  of  Con- 
gress, the  President  was  "authorized  to  reinstate"  a  "major, 
late  of  the  United  States  Army,  and  to  retire  him  in  that  grade 
as  of  the  date  he  was  iDreviously  mustered  out }  and  remarl^ed 
that  such  construction  was  especially  justified  in  a  case  like 
the  present,  where — as  gathered  from  the  reports  of  the  Com- 
mittees of  the  two  Houses,  upon  the  recommendation  of  which 
the  Act  was  passed — the  evident  intent  was  simply  to  have 
reinstated  in  his  former  i)osition  an  officer  who  had  been  dis- 
placed from  the  same  through  injustice  or  error.^  XLII,  196. 
[See  Appointihent  §  3.] 

10.  In  the  case  referred  to  in  the  last  paragraph  the  Act, 
(as  above  cited,)  authorized  the  reinstatement  of  the  officer 
"  as  of  the  date  he  was  i)reviously  mustered  out,  charging  him," 

^  This  bill  did  not  become  law,  but  there  was  subsequently 
passed  an  Act  authorizing  the  President,  in  his  discretion,  to 
ai^i^oint  the  oflicer,  with  the  concurrence  of  the  Senate. 

^See  the  concurring  decision  of  the  Court  of  Claims  in  this 
case — Collins  v.  United  States,  14  Ct.  CI.  5GS ;  tbe  Solicitor 
General,  however,  in  a  i^revious  opinion  of  Ai^ril  10,  1879, 
(XVI  Opins.  — ,)  having  held  contra. 


STATUTES— CONSTRUCTION  OF.  463 

as  it  was  added,  ''  with  all  extra  pay  and  allowances  paid  liim 
at  that  time."  Held  that  this  officer,  upon  his  reinstatement, 
was  entitled  to  the  pay  of  a  major  from  the  date  of  his  muster 
out,  (under  the  Act  of  July  15,  1870,  less  the  extra  ''  one  year's 
pay  and  allowances"  then  paid  him  in  accordance  with  the 
provisions  of  sec.  12  of  the  same.^     XLTI,  192-103. 

11.  An  Act  of  Congress,  in  declaring  in  substance  that  an 
officer  was  unjustly  and  erroneously  mustered  out  of  the  serv- 
ice in  January  1871,  proceeded  to  authorize  the  President  ''to 
restore  him  to  his  proper  rank  and  i^romotion  in  the  armj'  with 
directions  to  the  Secretary  of  War,  on  account  of  his  disabili- 
ties incurred  in  the  line  of  duty,  to  place  him  on  the  retired  list.'' 
The  officer,  had  he  not  been  mustered  out,  (as  a  captain,) 
would  have  attained  the  rank  of  major  on  Dec.  10,  1873. 
Held.,  on  construing  this  Act  in  connection  with  the  emphatic 
favorable  reports  upon  the  case  of  Committees  of  the  two 
houses  of  Congress,  that  the  intent  of  the  Act  clearly  was  to 
reinstate  completely  this  officer  so  far  as  his  rank  was  con- 
cerned, and  that  the  President  was  therefore  authorized,  (by 
appointment  without  the  concurrence  of  the  Senate — see  §  9,) 
to  restore  the  officer  to  the  army  as  a  major  with  rank  from 
Dec.  1 0,  1873,  and  thereupon  to  cause  him  to  be  placed  upon 
the  retired  list  as  an  officer  of  the  army  of  this  rank.  XLII, 
246. 

12.  An  Act  of  Congress  required  the  Secretary  of  War  to 
order  a  court  martial  or  court  of  inquiry  "  to  inquire  into  the 
matter  of  the  dismissal "  of  a  certain  officer  who  had  been 
summarily  dismissed  by  the  President  in  18G3,  and  further 
empowered  such  court  "  to  confirm  or  annul  the  action  "  by 
which  he  was  dismissed,  adding  that  its  "findings"  should 
"have  the  eflect  of  restoring"  the  party  "to  his  rank  with 
the  promotion  to  which  he  would  be  entitled  if  it  be  found 
that  he  was  wrongfully  dismissed,  or  to  confirm  his  dismissal 
if  it  be  otherwise  found."  Under  this  Act  the  Secretary 
of  War  ordered  a  court  of  inquiry  which  found  that  the 
officer  had  been  "  wrongfully  dismissed,"  and  declared  the  dis- 
missal to  be  a  nullity.    The  Act  and  record  of  the  court  hav- 

^  This  opinion  was  also  concurred  in  by  the  Court  of  Claims 
in  a  second  decision  in  the  same  case,  United  States  v.  Col- 
lins, 15  Ct.  CI.  — .  And  see  the  similar  conclusion,  as  to  the 
right  to  pay,  of  the  Solicitor  General,  in  opinion  of  April  10, 
1879,  (XVI  Opius  — .) 


464:  STEALING— STENOaRAPHER. 

iug  been  referred  by  tlie  Secretary  of  War  to  tlie  Judge  Ad- 
vocate General  for  opinion  as  to  the  executive  action  proper 
to  be  taken,  if  any, — held  tliat  tlie  only  manner  in  which  a 
dismissed  officer,  or  other  civilian  could  be  admitted  to  the 
army  was  by  an  appointment  made  i)ursuant  to  the  i)ro visions 
of  Art.  II,  Sec.  2,  par.  2  of  the  Constitution ;  that  Congress 
was  not  empowered  to  appoint  a  civilian  as  an  officer  of  the 
army,  or  to  authorize  a  military  court  to  make  such  an  appoint- 
ment ;  ^  that  the  Act,  in  authorizing  the  restoration  of  the 
officer  by  and  upon  the  favorable  finding  of  the  court,  was 
clearly  unconstitutional  and  inoperative ;  further  that  no  im- 
plied authority  for  an  appointment  of  the  officer  by  the  Presi- 
dent could  properly  be  gathered  from  the  Act.^  And  added— 
that  the  imnciple  of  that  extreme  instance  of  a  liberal  con- 
struction of  a  statute  in  favor  of  the  exercise  of  the  appointing 
power  presented  in  the  opinion  of  the  Attorney  General  in  the 
case  of  Lieut.  Yon  Luettwitz,  (XIY  Opinions,  448,)  could  not 
be  extended  to  the  present  case,  since  by  this  Act  the  function 
of  the  executive  department  was  in  terms  confined  to  the  or- 
dering of  the  court  -,  the  authority  to  appoint,  so  far  as  any 
was  conferred,  being  expressly  reserved  by  Congress  to  itself, 
or  rather  to  the  court.     XLII,  297. 


STEALIETG. 

See  larceny. 

STEHOGEAPHER. 

See  reporter. 

^  A  military  court,  being  no  part  of  the  U.  S.  judiciary,  (see 
Court  Martial,  I  §  1,)  is  of  course  not  included  in  the 
''  courts  of  law  "  to  which  a  xwwer  of  appointment  of ''  inferior" 
officers  is  authorized  to  be  given  by  Art.  II,  Sec.  2,  jjar.  2,  of 
the  Constitution.  Moreover  this  power,  as  interi)reted  by  the 
authorities,  properly  extends  only  to  the  api:>ointment,  by 
the  U.  S.  Courts,  of  their  own  inferior  officers,  such  as  clerks, 
reporters,  or  bailiifs.  See  IV  Opins.  of  Attys.  Gen.  104  j  XI 
Id.  213  ;  Ex  parte  Ilennen,  13  Peters,  258;  Story's  Com.  on  the 
Const.  §  1530. 

-This  conclusion,  however,  was  not  accepted,  and  the  ap- 
X)ointment  was  matle  and  confirmed. 


STOPPAGE.  465 


STOPPAGE. 


1.  The  pay  of  an  officer  or  soldier  cannot  be  subjected  to 
stoppage  except  by  the  authority  of  a  statute  or  regulation 
specifically  authorizing  the  same  or  of  a  sentence  of  court  mar- 
tial imposing  a  forfeiture  or  tine  as  a  punishment,  or  ^Yhere 
the  party  has  become  indebted  to  the  United  States  on  account. 
In  a  case  of  supposed  liability  to  stoppage,  resulting  from  a 
neglect  or  an  act  chargeable  as  a  military  ofience,  and  as  to 
which  the  facts  are  disputed,  it  is  in  general  preferable  to  have 
the  case  investigated  and  the  actual  pecuniary  liability,  if  any, 
fixed  by  a  trial  by  court  martial.  XXX,  293 ;  XXXIII,  445. 
A  superior  is  not  authorized  to  stop  against  the  pay  of  an  infe- 
rior the  value  of  property  charged  to  have  been  criminaUy  mis- 
appropriated, (III,  628;  XXI,  139;)  and  it  is  the  experience 
of  the  Judge  Advocate  General  that  most  or  many  of  the 
cases  of  loss  of  or  injury  to  public  property  in  which  the  facts 
have  been  investigated  and  the  damage  assessed  by  boards 
of  survey,  would  have  been  more  profitably  i^assed  uj^on  by 
courts  martial,  by  which,  instead  of  a  stoppage,  a  forfeiture 
could  have  been  imposed,  as  a  punishment^  by  sentence. 
XXX,  293;  XLIII,  217. 

2.  The  United  States  is  not  authorized  to  stop  against 
the  pay  of  an  officer  or  soldier  an  amount  of  personal  in- 
debtedness to  another  officer  or  soldier,  though  such  indebt- 
edness may  have  grown  out  of  the  relations  of  the  military 
service.  Thus,  in  the  absence  of  a  sentence  of  court  martial 
forfeiting  the  same,  an  officer's  pay  cannot  legally  be  stopped 
with  a  view  to  the  reimbursement  of  enhsted  men  who  have 
deposited  with  him  money  for  safe  keeping,  which  he  has 
failed  to  return  when  requrred,  the  officer  being  accountable 
for  the  same  in  a  i)ersonal  capacity  only.    XII,  510 ;  XVI,  037. 

3.  Held  that  for  a  liability  incurred  upon  a  first  enlistment, 
a  soldier  could  not  legally  be  subjected  to  a  stoppage  against 
the  pay  due  him  upon  a  second  enlistment ;  the  latter  being 
a  separate  and  independent  contract  between  the  man  and 
the  government,  the  right  to  the  consideration  money  due 
upon  which,  (as  fixed  by  statute,)  could  not  be  any  more  sub 

30  D 


^66  SUBSISTENCE   STORES. 

ject  to  be  imj)aired  by  an  obligation  growing  out  of  and  at- 
tached to  a  different  and  distinct  contract  than  by  an  obliga- 
tion incurred  ui:)on  a  contract  between  the  United  States  and 
another  soldier.  XLIII,  186.  So  where  the  amount  of  an 
installment  of  bounty,  paid  to  a  soldier  upon  his  being  dis- 
charged from  an  enlistment,  was  stopped,  as  having  been  im- 
proi)erly  allowed,  against  the  i)ay  of  the  soldier,  upon  his 
subsequently  reenlisting,  held  that  such  stoppage  was  unau- 
thorized and  illegal.    XLIII,  218. 

See  seventeenth  ARTICLE  $  1. 
FIFTY  FOURTH  ARTICLE  $  2. 
DESERTION  ^  14. 
FINE  $  2. 


SUBSISTENCE  STORES. 

1.  Where  subsistence  stores  were  sold,  by  a  post  commis- 
sary of  subsistence,  to  a  mess  of  three  ofiQcers  of  the  post, 
and  charged  to  the  mess  as  such,  held  that  such  mess  was  not 
in  the  nature  of  a  commercial  partnership  in  which  each  mem- 
ber was  bound  for  the  joint  indebtedness,  but  was  simply  an 
association,  for  purjioses  of  convenience  and  economy,  of 
three  individuals,  each  of  whom  was  bound  to  the  United 
States  only  for  his  proportion — one  third — of  the  account. 
And  held  that  a  member  W'ho  had  paid  his  proportion  to  one 
of  the  other  members  who  acted  as  caterer  but  who  had  de- 
ceased without  paying  over  this  amount  to  the  Commissary, 
remained  liable  for  such  proportion  to  the  United  States. 
XLI,  155. 

2.  Meld,  (August,  1879,)  that  the  "ten  per  cent,"  directed 
by  the  Appropriation  Act  of  June  23,  1879,^  to  be  added  to 
accounts  for  subsistence  stores  "sold  to  ofiQcers  and  men"  of 
the  army,  could  not  legally  be  added  to  the  cost  of  the  sub- 
sistence stores  furnished  for  the  i:)risoners  at  the  Leavenw^orth 
Military  Prison ;  such  i:>risoners  not  being  embraced  in  the 
class  referred  to  in  said  Act,  but  being  provided  for  by  a 
separate  and  distinct  api)roiiriation  for  the  support  of  the 
Prison,  contained  in  the  Act  of  March  3,  1879,  c.  182,  and 
which  is  unaccompanied  by  any  such  requirement.     XLI,  651. 

^  And  see  a  similar  provision  in  the  Army  Apj^ropriation 
Act  of  May  1,  1880. 


SUPERINTENDENT— SUPERNUMERARY  LIST.  467 

3.  Held  that  the  ten  per  cent,  required  by  the  Act  of  June 
23,  1870,  to  be  added  to  the  cost  of  subsistence  stores  sold  to 
officers  and  soldiers,  ''  to  cover  Tvastage,  transportation,  and 
other  incidental  charges,"  was  to  be  added  in  every  instance 
of  such  sale,  whether  or  not  there  had  been  any  wastage  &c., 
in  the  case  of  the  particular  article  or  articles  soldj  the 
"charges"  intended  to  be  covered  being  understood  to  be 
charges  incurred  in  connection  with  the  stores  sold  or  kept 
for  sale  as  a  whole.    XLIII,  100. 

4.  Held  that  the  provision  of  the  Act  of  June  23,  1870,  in 
regard  to  the  adding  of  ten  per  cent,  to  the  cost  of  subsist- 
ence stores  sold  to  officers  and  soldiers,  was  to  be  viewed  as 
qualifying  the  provisions  of  Sees.  1144  and  1145,  Eev.  Sts., 
and  thus  as  applying  only  to  stores  sold  by  the  United  States, 
through  the  Subsistence  department.  So  held  that  it  did  not 
apply  to  sales  made  directly  to  officers  and  soldiers  by  con- 
tractors under  contracts  expressly  stipulating  for  such  sales 
to  be  made  by  them.    XLIII,  100. 

See  claims  $  10. 

SUPERIUTEHDENT  OF  CEMETERY. 

See  sixty  THIRD  ARTICLE  $  8. 
CIVIL  PROCESS  ^  4,  note. 
NATIONAL  CEMETERY  ^  5,  6. 

SUPEEIJUMERARY  LIST. 

[Act  of  July  15,  1870,  c.  204,  s.  12.] 

Held  that  it  was  clearly  the  contemplation  of  this  statute 
that  the  President,  though  not  absolutely  in  terms  required 
to  transfer  officers  to  the  supernumerary  list  prior  to  January 
1,  1871,  would  in  fact  do  so,  so  that  all  the  officers  classed  as 
supernumerary  would  be  equally  eligible  to  appointment  to 
vacancies  occurring  prior  to  said  date;  preference  only  being 
given  to  those  of  superior  rank,  length  of  service  and  fitness. 
So,  advised  that  the  case  of  an  ai)parently  meritorious  officer 
who  was  placed  on  the  supernumerary  list  and  mustered  out 
on  one  and  the  same  date,  January  1, 1871,  and  thus  deprived 
of  all  claim  or  opportunity  to  be  so  appointed,  was  not  equita- 
bly disposed  of,  and  for  this  reason  would  commend  itself  to 


468  SURGEON— SUSPENSION. 

the  favorable  consideration  of  Congress  in  connection  with 
an  application  on  the  part  of  the  officer  for  relief  and  restora- 
tion.    XXXIX,  570. 

See  pay  AND  ALLOWANCES  $  10. 


SURGEON. 

See  medical  OFFICER. 

SUSPENSION. 

1.  The  punishment  of  suspension,  as  imposed  by  sentence, 
is  usually  in  the  form  of  a  suspension  from  ranlc^  or  from 
command^  for  a  stated  term,  sometimes  accompanied  by  a 
suspension  from  pay  for  the  same  period.  Suspension  from 
rank  includes  susi)ension  from  command.    VII,  7,  8. 

2.  A  suspension  from  rank  does  not  affect  the  right  of  the 
officer  to  his  office.  He  retains  the  same  as  before,  and,  as  an 
officer,  remains  subject  as  before  to  military  control  as  well 
as  to  the  jurisdiction  of  a  court  martial  for  any  military  offence 
committed  i)ending  the  term  of  suspension.^  XXX,  157  j 
XXXYII,  536;  XXXVIII,  221;  XXXIX,  436. 

3.  The  effect  of  a  suspension  from  rank,  (beside  detaching 
the  officer  from  the  performance  of  the  duties  incident  to  his 
rank,)  is  to  deprive  him  of  any  right  of  promotion  to  a  va- 
cancy in  a  higher  grade,  occurring  pending  the  term  of  sus- 
pension, and  which  he  would  have  been  entitled  to  receive  by 
virtue  of  seniority  had  he  not  been  suspended  \  such  right 
accruing  to  the  officer  next  in  rank.  [See  Promotion  §  4.] 
But  no  such  loss  of  i)romotion  is  incident  to  a  mere  suspen- 
sion from  command.     VII,  8;  XXVIII,  164;  XXXVII,  536. 

4.  Suspension  from  rank  does  not,  however,  deprive  the 
officer  of  the  right  to  rise  in  files  in  his  grade, — upon  the  pro- 
motion, for  examjile,  of  tbe  senior  officer  of  such  grade.  The 
number  of  an  officer  in  the  list  of  his  grade  is  not  an  incident 
of  his  rank  but  of  his  appointment  to  office  as  conferred  and 
dated,  and — as  we  have  seen — suspension  does  not  affect  the 
office.  Moreover  loss  of  files  is  a  contiuiiing  punishment,  and 
if  held  to  be  involved  in  suspension  from  rank,  the  result 

VSee  V  Opins.  of  AttysTOeny  7407^1(17715^ 


SUSPENSION.  469 

would  be  that,  for  au  indefinite  i>eriod  after  tlie  term  of  sus- 
pension had  expired,  the  officer  would  remain  under  punish- 
ment, the  sentence  imposed  by  the  court  being  thus  added  to 
in  execution,  contrary  to  a  well  known  principle  of  military 
law.    XXXIII,  09.    [See  Sentence  and  Punishment  §  13.] 

5.  It  is  further  the  effect  of  a  suspension  from  rank  that 
the  ofiicer  loses  for  the  time  the  minor  rights  and  i)rivileges 
of  i^riority  and  precedence  annexed  to  rank  or  command. 
Among  these  is  the  right  to  select  quarters  relatively  to  other 
officers.  And  where  quarters  are  to  be  selected  by  several 
officers,  one  of  whom  is  under  sentence  of  suspension  from 
rank,  the  suspended  officer  necessarily  has  the  last  choice. 
Or  rather  he  has  no  choice,  but  quarters  are  assigned  him  by 
the  commander ;  for,  being  still  an  officer  of  the  army,  though 
without  rank,  he  is  entitled  to  some  quarters.  But  advised 
that  an  officer  sentenced  to  be  suspended  from  rank  could 
not,  because  of  such  suspension  alone,  be  dei>rived  of  quar- 
ters previously  duly  selected,  and  occupied  at  the  time  of  the 
suspension  ',  such  a  sentence  not  affecting  a  right  previously 
accrued  and  vested.  XXYII,  241  j  XXIX,  6725  XXXVII, 
536. 

6.  Suspension  from  rank  does  not  involve  a  status  of  con- 
finement or  arrest.  YII,  242.  In  sentencing  an  officer  to  be 
suspended  from  rank,  it  is  indeed  not  unusual  for  the  court 
to  require  that  he  be  confined  during  the  term  of  suspension 
to  his  proi)er  station,  or  that  of  his  regiment,  &c.,  i.  e.  that 
the  sentence  be  executed  there.  Where  this  is  not  done, — 
while  the  suspended  officer  is  not  entitled  to  a  leave  of  absence, 
it  cannot  affect  the  execution  of  his  sentence  to  grant  him  one, 
and  leaves  of  absence  are  not  unfrequeutly  granted  under  such 
circumstances.    XXXVI,  226. 

7.  Susi)ension  from  rank  or  command  does  not  involve  a 
loss  or  authorize  a  stoppage  of  pay  for  the  period  of  suspen- 
pension.^  Pay  cannot  be  forfeited  by  implication.  [See  FoK- 
FEITURE,  II  §  2.]  Unless  therefore  the  sentence  imposes  a 
suspension  from  rank  (or  command)  ''and  j^rt^/,"  or  in  terms 
to  that  effect,  the  suspended  officer  remains  as  much  entitled 
to  his  pay  as  if  he  had  not  been  suspended  at  all,  and  to  re- 
quire him  to  forfeit  any  pay  would  be  adding  to  the xmnishment 
and  illegal.     XXIII,  427;  XXVIII,  164. 

'  SeeTv  Opins.  of  Attys.  Gen.  444;  VI  Id.  203. 


470  SUSPENSION. 

8.  Where,  liowever,  the  suspension  is  extended  by  the  sen- 
tence to  paj^,  the  i)ay  is  forfeited  absohitely,  not  merely  with- 
held. And  all  the  pay  is  forfeited,  unless  otherwise  expressly 
indicated  in  the  sentence.  XXIII,  556.  The  forfeiture,  im- 
posed by  a  sentence  of  suspension  from  rank,  (or  command,) 
and  pay  for  a  designated  term,  is  a  forfeiture  of  the  pay  of 
that  specific  term,  the  suspension  of  the  rank  and  that  of  the 
l)ay  being  coincident.  Under  such  a  sentence  the  officer  can- 
not legally  be  deprived  of  pay  due  for  a  period  x)rior  to  the 
suspension.  XXII,  113.  Where  an  officer  was  sentenced  to 
suspension  from  rank  and  pay  for  six  months,  held  that  his 
entire  pay  for  those  months  was  absolutely  forfeited,  notwith- 
standing that  the  pay  of  officers  of  his  grade  was  increased 
by  statute  pending  the  term.     XXI Y,  4G2. 

9.  A  sentence  of  suspension  from  rank  and  pay  does  not 
affect  the  right  of  the  officer  to  tlie  allowances  which  are  no 
part  of  his  x)ay^ — (see  Pay  and  Allowances  §  1,) — as  the 
allowance  for  rent  of  quarters,  as  also  the  allowance  for  fuel 
or  rather  right  to  purchase  fuel  at  a  reduced  rate.  XXIX, 
612;  XXXVIII,  426. 

10.  The  status  of  an  officer  under  suspension  is  the  same 
whether  such  suspension  has  been  imposed  directly  by  sen- 
tence, or  by  way  of  commutation  for  a  more  severe  punish- 
ment. Thus  where  a  sentence  of  dismissal  w^as  commuted  to 
suspension  from  rank  on  half  pay  for  one  year,  held  that  the 
officer,  while  forfeiting  the  rights  and  privileges  of  rank  and 
command  during  such  term,  was  yet  amenable  to  trial  by 
court  martial  for  a  military  offence  committed  pending  the 
same.    XXXVIII,  426. 

11.  Where  an  officer,  when  under  a  sentence  of  suspension, 
is  ordered  by  the  commander  who  approved  the  sentence,  or 
some  higher  comi^etent  authority,  to  resume  his  command  or 
the  performance  of  his  regular  military  duty,  such  order  will 
in  general  operate  as  a  constructive  remission  of  the  punish- 
ment and  thus  terminate  l^e  susi^jension.^  XXV,  412.  [See 
Pakdon  §  8.] 

12.  In  rare  cases  the  form,  ''to  be  suspended  from  the  serv- 
ice," has  been  employed  in  the  sentence.  Such  a  suspension 
is  equivalent  in  substance  to  a  suspension  from  rank.     XXIII, 

^  McXaghten,  27. 
2  See  McXaghten,  22. 


i 


SUSPENSION.  471 

427.  A  still  rarer  form,  ^^'to  ha  suspended  from  duty,"  has 
beeu  deemed  to  be  practically  equivalent  to  a  sentence  of 
suspension  from  command.^  VII,  242.  These  forms  are  now 
quite  disused. 

13.  A  sentence,  "to  be  suspended  from  the  Military  Acad- 
emy," in  a  case  of  a  cadet,  ^practically  severs  him  from  the 
military  service  as  a  cadet  during  the  term  of  the  suspension. 
It  is  usually  added  in  such  a  sentence  that,  at  the  end  of  such 
term,  the  party  is  to  join  the  next  lower  class.     XXIII,  427. 

14.  Like  dismissal,  suspension  takes  effect  uj)on  and  from 
notice  of  the  approval  of  the  sentence  officially  communicated 
to  the  officer,  either  by  the  promulgation  of  the  same  at  his 
station,  or, — where  he  is  absent  therefrom  by  authority, — by 
the  delivery  to  him  of  a  copy  of  the  order  of  ai)proval  or  other 
form  of  official  persoual  notification  of  the  fact  of  the  approval. 
XXV,  527;  XXVII,  241;  XXXIII,  109;  XXXVIII,  341. 
[See  Dismissal,  I  §  3;  Order,  I  §  2.] 

15.  Suspension,  as  a  punishment  for  a  non-commissioned  offi- 
cer, is  not  authorized  in  terms  in  Art.  101,  nor  is  it  contem- 
plated in  the  Army  Eegulations.  It  has  been  adjudged  in 
but  rare  cases,^  and  cannot  be  regarded  as  sanctioned  by 
I)rinciple  or  usage.     XXVI,  358. 

16.  Suspension  not  divesting  the  officer  of  his  office  or  com- 
mission, but  simply  holding  in  abeyance  the  rights  and  func- 
tions attached  to  his  rank  or  command,  he  properly  reverts, 
when  the  term  of  the  punishment  is  completed,  to  Lis  former 
rank  and  the  command  attached  thereto,  and  continues  to 
hold  and  exercise  the  same,  as  before  his  arrest  or  trial.^ 
XXX,  247. 

See  leave  OF  ABSENCE  $  2. 
LOSS  OF  FILES  ^  4. 
EETIREMENT  s^  8,  II. 

^  Suspension  from  duty,  as  distinguished  from  suspension 
from  rank,  is  a  recognized  punishment  in  the  naval  service. 
Xavy  Eegulations,  Art.  32,  sec.  2;  Harwood,  134-5. 

2  See  a  "comparatively  late  instance  in  G.  C.  M.  O.  33,  Dept. 
of  the  East,  1872. 

^Sullivan,  who,  (p.  88,)  traces  this  punishment  to  *'tbe 
ecclesiastical  jurisdiction,  wliich  admitted  suspension  as  a 
minor  excommunication,"  adds,  in  regard  to  the  officer  sen- 
tenced:— ''At  the  expiration  of  the  term  of  suspension,  he  be- 
comes a  perfect  man  again." 


472  TAX. 


T. 


TAX. 

1.  The  authorities  of  a  State  or  Territory,  (or,  of  course,  of 
a  county,  town,  &c.y)  are  not  empowered  to  tax  an  officer  or 
soldier  of  the  army  on  account  of  his  pay,  or  for  any  i)ersonal 
property  in  his  possession  properly  required  for  the  due  exer- 
cise of  his  office  or  performance  of  his  military  duties.  Offi- 
cers and  soldiers  of  the  army  are  instrumentalities  provided 
by  law  to  enable  or  assist  the  President  to  exercise  his  con- 
stitutional function  of  Commander-in-chief  and  Executive 
of  the  nation.  The  pay  and  emoluments  furnished  them  by 
Congress  are  means  to  make  their  services  possible  and 
effective,  and  their  right  to  receive  and  enjoy  the  same  cannot 
be  in  any  degree  imi^aired  or  infringed  upon  by  tbe  authorities 
of  a  distinct  and  inferior  sovereignty.  And  the  same  princi- 
ple of  exemption  i^roperly  ai)i)lies  to  their  arms,  equipments, 
horses,  and  other  personal  property  required  to  be  possessed 
and  employed  by  them  in  the  military  service.^  XXX,  215  j 
XXXIX,  5G3. 

^  In  the  leading  case  applicable  to  this  subject — Dobbins  v. 
Commissioners  of  Erie  county,  16  Peters,  435 — the  Supreme 
Court  of  the  United  States,  in  declaring  to  be  unconstitutional 
a  State  statute,  so  far  as  it  authorized  thetaxiug  of  the  office 
of  a  captain  in  the  'U.  S.  revenue  service,  held  as  follows : 
"  The  compensation  of  an  officer  of  tbe  United  States  is  fixed 
by  a  law  made  by  Congress.  It  is  in  its  exclusive  discretion 
to  declare  what  shall  be  given.  It  exercises  the  discretion 
and  fixes  the  amount,  and  confers  upon  the  officer  the  right 
to  receive  it  when  it  has  been  earned.  Any  law  of  a  State 
imposing  a  tax  upon  the  office,  diminishing  the  recompense, 
is  in  conflict  with  the  law  of  the  United  States  which  secures 
the  allowance  to  the  officer."  Further  :  "  Taxation  by  a  State 
cannot  act  ui^on  the  instruments,  emoluments  and  persons 


TAX.  473 

2.  The  principle  exempting  from  taxation  the  office  or  sal- 
ary of  an  officer  of  the  United  States  applies  to  officers  on 
the  retired  list  equally  as  to  those  on  the  active  list  of  the 
army.  Eetired  officers  being  a  part  of  the  array,  are  a  part 
of  the  machinery  of  the  Government,  though  a  part  not 
often  called  into  active  operation.  XXXVI,  154,  291.  But 
though  a  retired  officer  cannot  legally  be  taxed  by  State  or 
municipal  authorities  on  account  of  his  army  i)ay  as  property 
or  income,  he  is  subject  to  be  taxed  for  other  property  owned 
and  held  at  his  i^lace  of  residence,  like  any  other  citizen. 
XLII,  669. 

3.  The  question  of  residence  is  one  of  i)ersonal  intent :  a 

which  the  United  States  may  use  and  employ  as  necessary 
and  proper  means  to  execute  their  sovereign  powers.  *  *  * 
The  State  governments  cannot  lay  a  tax  upon  the  constitu- 
tional means  employed  by  the  government  of  the  Union  to 
execute  its  constitutional  powers."  In  a  later  case,  Society 
for  Savings  v.  Coite,  6  Wallace,  605,  the  same  Court  declares: 
''All  subjects  over  which  the  sovereign  i)ower  of  a  State  ex- 
tends are,  as  a  general  rule,  proi)er  subjects  of  taxation,  but 
the  i)ower  of  a  State  to  tax  does  not  extend  to  those  means 
which  are  employed  by  Congress  to  carry  into  execution  the 
liowers  conferred  in  the  federal  Constitution.  Unquestion- 
ably the  taxing  power  of  the  States  is  very  comi>rehensive 
and  pervading,  but  it  is  not  without  limits.  State  tax  laws 
cannot  restrain  the  action  of  the  national  government,  nor 
can  they  abridge  the  operation  of  any  law  which  Congress 
may  constitutionally  x^ass."  This  general  doctrine  is  applied 
by  Atty.  Gen.  Black,  (IX  Opius.  477,)  as  follows:  ''The 
authorities  of  a  State  cannot  impose  a  tax  upon  the  salary  of 
a  federal  officer,  or  upon  the  comi)ensation  i^aid  by  the  United 
States  to  any  person  engaged  in  their  service."  And  as  illus- 
trating the  principle  involved,  see  also  McCullochr.]\Iaryland, 
4  Wheaton,  316;  Westun  v.  Charlestown,  2  Peters,  449;  Sea- 
right  V.  Stokes,  3  Howard,  151 ;  Bank  of  Commerce  r.  Xew 
York,  2  Black,  '620;  Provident  Inst.  v.  Mass.,  6  Wallace,  611; 
The  Banks  v.  The  Mayor,  7  Id.  16 ;  Bank  v.  Supervisors,  Id. 
26 ;  Railroad  Co.  v.  Peniston,  18  Id.  5 ;  Carrol  v.  Perry,  4 
McLean,  25;  Stetson  r.  Bangor,  56  Maine,  274;  0])inion  of 
Justices,  53  X.  Hamp.  634;  United  States  v.  Weise,  5  Pa. 
L.  J.  E.  61 ;  West.  Un.  Tel.  Co.  v.  Richmond,  26  Grat.  1;  State 
V.  Garton,  32  Ind.  1;  YII  Opins.  of  Attys.  Gen.  578;  XI Y 
Id.  199.  In  the  late  case  of  Railroatl  Company  r.  Peniston, 
18  Wallace  30,  it  is  specified  by  Strong  J.  that-^"  the  States 
may  not  lev^j^  taxes  the  direct  effect  of  which  shall  be  to  hinder 
the  exercise  of  any  i^owers  which  belong  to  the  Xational  gov- 
ernment." 


474  TAX. 

resideDce  is  acquired  by  an  act  of  will.  An  officer  or  soldier 
on  the  active  list  cannot  properly  be  taxed  as  a  resident  of  a 
State  or  Territory  on  the  sole  ground  that  he  is  stationed  at  a 
post  or  place  within  such  State  or  Territory.  A  member  of 
the  army  is  commorant  at  his  military  station  not  by  his  own 
volition  but  in  x)ursuauce  of  the  orders  of  a  military  superior. 
By  farther  orders,  also,  he  is  liable  at  any  time  to  be  removed 
to  a  different  station  and  one  in  another  State.  His  abiding 
at  his  station  is  therefore  both  involuntary  and  temi)orary, 
and  it  is  in  general  much  more  reasonably  presumabl3  that 
an  officer's  station  is  not  his  residence  than  that  it  is  such.  An 
officer  or  soldier  is  frequently  not  a  resident  or  inhabitant  of 
any  State  or  Territory,  but,  wherever  he  may  be  stationed  or 
on  duty,  a  transeuns  merely.'  XXX,  215;  XXXVII,  396; 
XXXIX,  5G3;  XLI,  120.     [See  Residence.] 

See  post  TRADER  ^  6,  7,  8. 
UNITED  STATES. 

'  That  a  person,  however,  shall  be  a  resident  or  inhabitant, 
(terms  having  practically  the  same  meaning  in  law,)  of  a 
State,  is  not  essential  to  render  him  or  his  property  taxable. 
The  power  of  a  State  to  tax,  which  is  "one  of  its  attributes 
of  sovereignty,"  extends  to  all  subjects — persons,  property, 
or  business  ukthin  its  jurisdiction,  and  it  may,  as  a  general 
rule,  legally  tax  personal  property  held  or  being  within  its 
limits,  without  regard  to  the  domicil  of  the  owner.  See  case 
of  State  Tax  on  Forei^rn  Held  Bonds,  15  Wallace,  319;  Rail- 
road Co.  V.  Peniston,  18  Id.  29;  Duer  v.  Small,  4  Blatch.  263; 
People  V.  jMcCreery,  34  Cal.  432;  Hanson  v.  Vernon,  27  Iowa, 
48 ;  City  of  Philad.  r.  Tryon,  35  Pa.  St.  404 ;  XIV  Opins.  of 
Attys.  Gen.  200.  In  the  opinion  last  cited,  the  Attorney  Gen- 
eral, upon  the  question  of  the  authority  of  the  State  of  Xew 
York  to  tax  the  property  of  soldiers  held  by  them  upon  a 
part  of  the  government  lands  at  West  Point  as  to  which  a 
cession  of  the  State  jurisdiction  had  not  in  fact  then  been 
obtained,  held  as  follows:  "If  the  personal  property  referred 
to  is  of  a  kind  subject  to  taxation  by  the  laws  of  the  State, 
and  its  situs  is  within  the  territorial  jurisdiction  of  the  State, 
I  do  not  think  that  the  tact  that  the  ONvner  is  an  enlisted  man 
in  the  service  of  the  United  States,  and  has  done  nothing  to 
gain  residence  or  citizenship  in  the  State,  is  in  itself  sufficient 
to  exempt  the  pro])erty  from  State  taxation."  And  it  is  ad(k^d : 
"  In  regard  to  laiul  owned  by  the  United  States  witliin  tlie  limits 
of  a  State,  over  wiiic^h  the  State  has  not  parted  with  its  juris- 
diction, the  United  States  stand  in  the  rehition  of  a  juoprietor ; 
and  the  local  officers  have,  in  my  opinion,  the  same  right  to 
enter  upon  such  land,  or  into  the  buildings  located  there,  and 


TRADER — TREATY.  475 

TRADER. 

See  post  TRADER. 

TRANSPORTATION  OF  PUBLIC  FUNDS. 

Held  that  au  officer  of  a  regiment  detailed  with  a  guard  to 
transport  public  funds,  while  bound  of  course  to  such  reason- 
able care  and  vigilance  as  the  strength  of  his  command,  the 
circumstances  of  the  march,  «&c.,  would  enable  him  to  exer- 
cise, did  not  incur  the  responsibility  which  would  devolve 
upon  a  i3ay master,  (or  other  bonded  disbursing  officer,)  in 
charge  of  the  same  funds,  and  could  not  therefore  be  held 
liable  for  a  loss  resulting — without  fault  on  his  part— from  an 
actus  Dei  or  vis  major.  And  his  being  required  to  give,  and 
giving,  a  formal  receipt  for  the  funds,  could  not  add  to  his 
legal  liability  for  their  safe  transport.    XXXVIII,  331. 

TREATY. 

See  ALASKA  $  1. 

ARMY— EMPLOYME^^^T  OF  FOR  CIVIL  PURPOSES  $  6. 

EXTRADITION  $  1,  2. 

INDIAN  COUNTRY  $  1. 

INDIAN  WAR  §  2. 

MILITARY  RESERVATION  $  2,  and  note. 

seize  the  personal  property  of  individuals  for  non-payment  of 
taxes  thereon,  as  they  have  to  enter  upon  the  land  or  into  the 
buildings  of  any  other  proprietor  for  the  same  purpose ;  it  being 
understood  that  in  the  former  case  the  right  must  be  so  exer- 
cised as  not  to  interfere  with  the  operations  of  the  General  Gov- 
ernment." And  see  XIV  Opins.  27.  Persons,  however,  residing 
within  a  reservation  or  \)\i\ce,  exclusive  jurisdiction  over  which 
has  been  ceded  to  or  reserved  by  the  United  States,  are  not  taxa- 
ble by  the  authorities  of  the  State  within  the  limits  of  which 
the  post  or  place  is  situated.  See  Mitchell  v.  Tibbetts,  17 
Pick,  298 ;  Opinion  of  Justices,  1  Met.  580 ;  Commonwealth 
V.  Young,  Bright,  302  •,  VI  Opins.  of  Attys.  Gen.  577 — cited  in 
note  to  Cession  of  Jurisdiction  §  5. 


476  UNAUTHORIZED  PUBLICATION— USAGE. 


u. 


UNAUTHORIZED  PUBLICATION. 

See  sixty  SECOND  ARTICLE  $  5. 
STATEMENT  $  5. 


UNITED  STATES. 

The  United  States,  like  any  other  corporation,  is  liable  for 
taxes  duly  assessed  by  the  municipal  authorities  on  land 
owned  by  it  within  a  State,  (over  which  exclusive  jurisdiction 
has  not  been  ceded,)  and,  ex  aequo  et  bono^  should  not  unrea- 
sonably delay  to  pay  the  same  if  correct  and  just  in  amount. 
Such  taxes,  however,  cannot  in  general  be  settled  by  a  head 
of  a  department  in  the  absence  of  an  appropriation  made  by 
Congress  for  the  purj^ose.    XLIV,  103. 

See  quitclaim. 


UNLIQUIDATED  DAMAGES. 

See  claims  ^  6. 

USAGE. 

See  custom  OF  THE  SERVICE. 


VARIANCE — VIOLATION  OF  LAWS  OF  TVAE.  477 


VARIANCE. 

A  material  variance  between  the  name  of  the  accused  in 
the  specification  and  in  the  sentence  should,  if  possible,  be 
corrected  by  a  re-assembling  of  the  court  for  a  revision  of  its 
sentence.  If  this  be  rendered  imi)racticable  by  the  exigen- 
cies of  the  service,  the  sentence  should  in  general  be  disap- 
proved as  fatally  defective.  Thus  held^  in  a  case  where  the 
names  in  the  sentence  and  the  specification  were  entirelj^  dif- 
ferent, the  one  being  John  Moore  and  the  other  James  Cun- 
ningham, (XVII,  GOl  j)  also  in  cases  in  which,  while  the  sur- 
names were  the  same,  the  christian  names  were  quite  different, 
one  being  George  and  the  other  William,  &c.,  (VIII,  CGC ;  IX, 
27,  134;)  also  in  a  case  where  the  name  in  the  sentence, 
though  similar  to  that  in  the  specification  was  not  idem 
sonans,  as  where  the  accused  was  arraigned  upon  charges  in 
which  he  was  designated  as  Woodworth,  but  was  sentenced 
under  the  name  of  Woodman.  II,  555.  A  difference,  how- 
ever, in  a  middle  initial  is  not  a  material  variance,  a  middle 
name  not  being  an  essential  i)art  of  the  christian  name  in 
law.i    XIII,  481. 

VIOLATION  OF  THE  LAWS  OF  WAR. 

See  LAW  OF  WAR  $  2—8. 

MILITARY  COMMISSION,  II  $  1, 2, 3. 
PRISONER  OF  WAR  $  3. 
SPY^  1,5. 

^  That  the  law  "  recognizes  but  one  christian  name,"  and 
that  the  insertion  or  omission  of  a  middle  initial  or  initials 
"  will  have  no  effect  in  rendering  any  i^roceediug  defective  in 
point  of  law"— see  II  Opins.  of  Attys.  Gen.  332;  III  Id.  467; 
also  Franklin  r.  Tallmadge,  5  Johns.  84 ;  Eoosevelt  i'.  Gardi- 
nier,  2  Cow.  4G3 ;  State  v.  Webster,  30  Ark.  168. 


478  VOLUNTEERS. 


VOLUNTEERS. 

1.  The  volunteer  force  during  the  late  war  was  not  a  part 
of  the  Militia,  but  of  the  Army  of  the  United  States.  Though 
assimilated  to  the  militia  in  some  respects,  as,  for  example,  in 
the  mode  of  original  appointment  of  regimental  and  company 
ofiicers,  it  was  as  distinct  in  laiv  from  the  Militia,  as  was  the 
so-  called  "  regular  "  contingent  of  the  Army.  ^  Volunteer  offi- 
cers, once  mustered  into  the  service  of  the  United  States, 
and  while  they  remained  in  that  service,  did  not  differ  sub- 
stantially from  regular  officers  in  their  status,  rights,  or  other- 
wise. Their  tenure  of  office  was  indeed  briefer :  this,  how- 
ever, was  not  a  material  legal  distinction,  since  the  term  of 
regular  officers  was  also  in  some  cases  limited  by  statute 
to  a  definite  period — as  the  duration  of  the  existing  war. 
XXXIY,  459.     [See  Eegular  Army.] 

2.  In  a  case  of  a  volunteer  officer,  unjustly  dismissed,  by 
sentence  or  order,  during  the  war,  and  apx)lying  for  restora- 
tion, there  is  the  obstacle,  (not  encountered  in  a  case  of  a 
regular  officer,)  that  the  volunteer  contingent  of  the  army 
has  been  long  since  disbanded,  so  that  a  restoration  to  office  in 
the  same  is  impracticable.  And  as  a  dismissed  officer  cannot 
of  course  be  granted  an  honorable  discharge  from  the  army, 
without  first  being  readmitted  to  the  army  by  a  new  appoint- 
ment, and  a  volunteer  officer  cannot  as  such  be  so  readmitted, 
advised,  (February,  1880,)  in  a  case  of  a  volunteer  officer  ap- 
plying for  relief,  on  account  of  an  unjust  dismissal,  that  the 
form  of  relief  most  apposite  to  his  case,  would  be  a  special 
enactment  giving  him  pay  from  the  date  of  his  dismissal, — 
reciting  that  the  same  was  based  upon  insufficient  grounds, — 
to  the  date  of  the  final  muster-out  of  his  regiment,  precisely 


^  As  illustrating  the  distinction  made  in  Sec.  8,  Art.  I,  of  the 
Constitution,  between  the  Army  and  Militia,  and  indicating 
the  status  of  the  Volunteers,  during  the  late  war,  as  a  part  of 
the  former — see  Kerr  v.  Jones,  11)  Ind.  351 ;  Wantlan  v.  White, 
Id.  471 ',  In  the  matter  of  Kimball,  1)  Law  Itep.  503  j  Bur- 
roughs V.  Peyton,  IG  Grat.  483,  485. 


VOTE  OF  THE  COURT.  479 

as  if  be  had  continued  regularly  in  the  service  during  the  in- 
terval.    XLIII,  235. 

3.  Officers  of  volunteers,  or  officers  holding  office  in  the 
army  of  a  limited  tenure,  who,  without  change  of  rank,  were 
incorporated  mto  the  military  establishment  at  the  end  of  the 
war,  by  the  Act  of  July  28,  18GG,  or  other  statute,  became  as 
permanently  and  comi)letely  officers  of  the  regular  army  as 
if  they  had  been  originally  appointed  in  the  same;  ^  and  brevet 
commissions  held  by  such  officers  prior  to  such  incorporation 
remained  thereafter  as  valid  and  effectual  as  did  the  original 
commissions  to  which  such  brevet  commissions  were  inci- 
dental, and  fully  conferred  in  the  regular  army  the  brevet 
rank  specified  in  the  same.    XXX,  1. 

See  twenty  SECOND  ARTICLE  $  3. 

SIXTIETH  ARTICLE  $  17. 

SEVENTY  SEVENTH  ARTICLE  $  1. 

DISMISSAL,  II  ^  4. 

EXTRA  PAY. 

RANK  ^  2,  3. 

REMOVAL  OF  DISABILITY. 

VOTE  OF  THE  COURT. 

A  tie  vote  upon  any  proposition  submitted  to  the  court  is 
equivalent  to  a  vote  in  the  negative, — a  majority  vote  being 
necessary  to  a  determination  in  the  affirmative, — and  the 
proposition  is  not  approved.  Where  the  vote  is  a  tie  upon 
an  objection  to  testimony,  the  objection  is  not  sustained. 
Where  it  is  tied  upon  a  certain  proposed  finding  or  form  of 
sentence,  the  same  is  not  adopted.  XXXI,  511, 610  j  XXXII, 
126.    [See  Finding  §  13.] 

See  eighty  FOURTH  ARTICLE  ^  4,  6. 

PRESIDING  OFFICER  OF  THE  COURT  §  3,  5. 

PROTEST. 

SENTENCE  AND  PUNISHMENT  $  1,  2. 

^  See  the  confirmatory  opinion  of  Atty.  Gen.  Hoar,  (as  to 
the  status  of  the  Judge  Advocates  of  the  Army,)  in  XIII 
Opinions,  96-99. 


480  WAR — WAR  POWER. 


w. 


WAR. 

Held^  (October,  1865,)  in  a  case  in  wliicli  a  State  Judge  liad 
discharged  a  soldier  enlisted  for  the  war,  on  the  ground  that 
the  war  had  ended,  that  the  Judiciary,  even  of  the  United 
States,  would  not  be  empowered  to  determine,  originally,  the 
question  whether  the  war  had  terminated,  but  ui)on  such 
question  would  x)roperly  await  and  abide  by  the  action  of  the 
President  or  Congress.^    XYIII,  293. 


WAR  POWER. 

The  war  i)ower  of  the  United  States  is  vested  in  Congress 
by  Art.  I,  Sec.  8,  pars.  11,  12,  13,  14,  15  and  IG,  of  the  Con- 
stitution.   The  President,  as  Executive  and  Commauder-in- 

^It  has  subsequently  been  similarly  held  in  repeated  cases. 
See  Pliillips  v.  Hatch,  1  Dillon,  571 ;  Semmes  v.  City  Fire 
Ins.  Co.  3G  Conn.  513 ;  Conley  v.  Supervisors,  2  West  Va. 
41G;  Perkins  v.  Eogers,  35  Ind.  124;  Sutton  v.  Tiller,  G  Cold. 
595 ;  also  United  States  v.  Anderson,  9  Wallace,  71. 

In  the  case  of  The  Protector,  12  Wallace,  700,  it  was  held 
by  the  Supreme  Court  that  the  war  began  in  all  the  insurrec- 
tionary States,  except  Virginia  and  Xorth  Carolina,  on  Ai)ril 
19,  18G1,  the  date  of  the  first  "proclamation  of  intended 
blockade,"  and  in  those  two  excepted  States  on  April  27th, 
18G1,  the  date  of  the  second  such  proclamation;  further  that 
the  war  ended.,  in  all  the  States  except  Texas  on  April  2d, 
18GG,  the  date  of  the  proclamation  declaring  the  war  at  an 
end  as  to  all  the  other  States,  and  in  Texas  on  August  20th, 
l^GG,  the  date  of  the  proclamation  declaring  the  war  at  an 
end  in  that  State  and  generally.  And  see  Adger  v.  Alston, 
15  Wallace,  555,  and  Burke  v.  Miltenberger,  19  Id.  519,  in 
which  the  ruling  in  The  Protector  is  atiirmed  by  the  same 
court  J  also  United  States  v.  Anderson,  9  Id.  b(j. 


WITNESS.  481 

chief  of  tlie  Army  and  Xavy,  becomes  authorized,  in  time  of 
war,  to  execute  this  power  under  the  public  Acts  of  Congress 
initiating  and  defining  the  same.  An  official  of  a  State  can  no 
more  lawfully  exercise  any  i)art  of  such  function  than  can  an 
individual  citizen.^  Thus,  where,  during  the  late  war,  the 
Governor  of  a  State  of  his  own  authority  caused  to  be  arrested 
and  confined  at. hard  labor  in  a  chain-gang  certain  inhabitants 
of  the  State  suspected  of  sympathizing  with  and  giving  aid  to 
the  public  enemy, — announcing  that  they  would  be  so  con- 
fined until  certain  civilians  and  military  officers,  who  were 
residents  of  such  State  and  had  been  seized  by  the  enemy, 
should  be  released;  held,  (June,  18(33,)  that  such  proceeding 
was  a  transcending  of  the  police  power  of  the  State  and  an 
assumption  of  an  exercise  of  the  tear  power  belonging  exclu- 
sively to  the  government  of  the  United  States,  and  was  there- 
fore unauthorized  and  illegal.  II,  511.  And  similarly  held, 
(September,  1863,)  that  the  seizing  and  holding,  hj  a  Gov- 
ernor of  a  State,  of  certain  persons  as  '^  hostages,"  in  rei)risal 
for  citizens  of  that  State  captured  by  the  enemy,  was  an 
exercise  of  the  war-making  power  belonging  to  the  general 
government  and  could  not  be  recognized  as  legal  by  the  Sec- 
retary of  War.    Ill,  558. 

WITNESS. 

1.  The  rules  governing  the  competency  of  witnesses  before 
the  criminal  courts  of  the  United  States  and  the  States  are, 
where  apposite,  generally,  (though  not  necessarily,)  followed 
in  the  j)ractice  of  courts  martial.  XLII,  71.  [Compare  Evi- 
dence §  1.] 

2.  It  was  heretofore  an  established  rule  that  accused  i^arties 
could  not  legally  testify  as  witnesses  before  military  courts.^ 
XXIX,  480,  565;  XXXYII,  624.     But,  now,  by  the  Act  of 

^  While  '>  war  can  alone  be  entered  into  by  national  author- 
ity," so — "no  hostilities  of  any  kind,  (except  in  necessary 
self-defence,)  can  lawfully  be  practised  by  one  individual  of 
a  nation  against  an  individual  of  any  other  nation  at  enmity 
with  it,  but  in  virtue  of  some  public  authority."  Talbot  v. 
Janson,  3  Dallas,  160. 

^  See  G.  0.  M.  0. 3,  Hdqrs.  of  Army,  1870,  in  which  is  incorpo- 
rated an  opinion  of  the  Judge  Advocate  General  on  this  subject. 
31  D 


482  WITNESS. 

Marcli  16,  1878,  c.  37,  it  is  expressly  provided  tliat  at  trials, 
not  only  before  the  courts  of  the  United  States,  but  be- 
fore courts  martial  and  courts  of  inquiry,  ^' the  person 
charged  shall,  at  his  own  request,  but  not  otherwise,  be  a 
competent  witness."  It  is  added:  "And  his  failure  to  make 
such  r*iuest  shall  not  create  any  i:>resumj)tion  against  him." 
But  parties  testifying  under  this  Act  have  no  exceptional 
status  or  iirivileges ;  they  must  take  the  stand  and  be  subject 
to  cross  examination  like  other  witnesses.  The  submission 
by  the  accused  of  a  sworn  written  statement  is  not  a  legiti- 
mate exercise  of  the  authority  to  testify  conferred  by  the 
statute,  and  such  a  statement  should  not  be  admitted  in  evi- 
dence by  the  court.^    XXXIX,  506. 

3.  It  has  been  uniformly  held  that  the  wife  of  a  person  on 
trial  before  a  court  martial  could  not  properly  be  admitted  as  a 
witness  for  or  against  him  f  and  the  statute  authorizing  accused 
parties  to  testify  does  not  affect  this  rule.  XXX,  672.  The  wife, 
however,  of  an  officer  or  soldier  may  be  admitted  to  testify  in 
his  case  before  a  court  of  inquiry,  the  proceeding  before  such  a 
body  not  being  a  trial  but  an  investigation  merely.  XXXII, 
2.  [See  One  hundred  and  fifteenth  Article  §  1,  note.] 
Where  a  court  martial  refused  to  admit  in  evidence,  (as  being 
incomj)etent,)  the  testimony  of  the  wife  of  the  prosecuting 
witness,  held  that  its  action  was  entirely  erroneous,  no  legal 
objection  existing  to  the  competency  of  such  a  person. 
XLIII,  106. 

4.  Sec.  858,  Eev.  Sts.,  declares  that:  "In  the  Courts  of  the 
United  States,  no  witness  shall  be  excluded  in  any  action  on 
account  of  color."  Seld  that  under  this  statute,  (as  well  as 
under  Sec.  1977,)  Indians  were  competent  to  testify  before 
courts  martial,  i)rovided  they  sufficiently  comi)reheuded  the 
obligation  of  an  oath.^  XXXI,  185.  [See  Xinety  Second 
Article  §  1.] 

5.  The  j)resident  or  any  member  of  a  court  martial,  as  also 

^See  the  General  Orders  cited  in  the  note  to  Evidence  § 
14. 

2  Xor  will  the  testimony  of  the  wife  of  an  accused  be  admis- 
sible in  favor  of  or  against  a  party  jointly  charged  with  him, 
where  her  testimony  will  be  material  to  the  merits  of  the 
question  of  the  guilt  or  innocence  of  her  husband.  See  Ter- 
ritory V.  Paul,  2  Montana,  314. 

^See  G.  G.  M.  O.  54,  Div.  of  Pacific  &  Dept.  of  Cal.  1879. 


WITNESS.  483 

the  judge  advocate,  may  legally  give  testimony  before  the 
court.  That  the  court,  at  the  time  of  a  member's  testif:sing, 
is  composed  of  but  five  members  will  not  afiect  the  validity 
of  the  proceedings,  since  in  so  testifying  he  does  not  cease  to 
be  a  member.  It  is  in  general,  however,  most  undesirable  that 
the  judge  advocate,  and  still  more  that  a  member,  should  ap- 
pear in  the  capacity  of  a  witness,  except  perhaps  where  the 
evidence  to  be  given  relates  simply  to  the  good  character  or 
record  of  the  accused.  II,  584;  VII,  202;  XI,  299;  XLII, 
472.    [See  Member  of  Court  §  5.] 

6.  It  is  no  objection  to  the  competency  of  a  witness,  that 
he  is  the  officer  upon  whom  will  devolve  the  duty  of  review- 
ing authority  when  the  proceedings  are  terminated.  XXXIX, 
518. 

7.  It  is  no  objection  to  the  competencj'  of  a  witness  that 
his  name  is  not  on  the  list  of  witnesses  appended  to  the 
charges  when  served.  The  prosecution  is  not  obliged  to  fur- 
nish any  list  of  witnesses,  nor,  where  one  is  furnished,  to 
confine  itself  to  the  witnesses  thus  specified.  [See  Charge 
§  29.]  The  fact  that  material  testimony  is  given  by  an  unex- 
pected witness  may  indeed  constitute  ground  for  an  applica- 
tion by  the  accused,  (under  Art.  93,)  for  further  time  for  the 
preparation  of  his  defence.    XXV,  350. 

8.  A  person  who  is  insane  at  the  time  is  incompetent  as  a 
witness.  An  objection,  however,  to  a  witness  on  account  of 
alleged  insanity  will  not  properly  be  allowed,  unless  sustained 
by  clear  proof,  a  man  being  always  presumed  to  be  sane  till 
proved  to  be  otherwise.    XXXIII,  91.     [See  Insanity  §  2.] 

9.  Except  where  their  testimony  will  be  merely  cumulative, 
and  will  clearly  add  nothing  whatever  to  the  strength  of  the 
defence,  (see  Ninety  Third  Article  §  1,)  the  accused  is  in 
general  entitled  to  have  any  and  all  material  witnesses  sum- 
moned to  testify  in  his  behalf.^  A  prompt  obedience  to  a 
summons  is  incumbent  upon  all  witnesses,  nor  is  a  command- 
ing or  superior  ofiBcer  in  general  authorized  to  place  any 
obstacles  in  the  way  of  the  prompt  attendance,  as  a  witness, 
of  an  inferior  duly  summoned  or  ordered  to  attend  as  such.^ 
XXXIII,  100 ;  XLIII,  341.    Where  the  judge  advocate  has 

'  See  G.  C.  M.  O.  21.  24,  War  Dept.  1872  :  do.  128,  Hdqrs. 
of  Army,  1876. 
2  See  G.  C.  M.  0. 18,  Dept.  of  the  Platte,  1877. 


484  WITNESS. 

declined  to  summou  a  witness  for  tlie  accused,  for  the  reason 
that  lie  is  not  "  satisfied,"  (in  the  words  of  par.  890,  of  the 
Army  Eegulations,)  "  that  his  testimony  is  material  and  nec- 
essary to  the  ends  of  justice,"  the  cotirt  may,  in  its  discretion, 
direct  him  to  be  summoned.  The  court,  however,  will  not  in 
general  properly  sanction  the  summoning  of  a  witness,  where 
it  is  not  probable  that  his  attendance  can  be  secured  within 
a  reasonable  time  and  his  deposition  can  legally  be  taken  pur- 
suant to  the  91st  Article  of  War.    YII,  184,  201. 

10.  In  military  law  an  accused  party  cannot  be  deemed  to 
be  entitled  to  have  a  witness  summoned  from  a  distance 
whose  military  or  administrative  duties  are  of  such  a  char- 
acter that  they  cannot  be  left  without  serious  prejudice  to  the 
public  interests.  Art.  YI  of  the  Amendments  to  the  Consti- 
tution declaring  that  the  accused  shall  be  entitled  ''  to  be  con- 
fronted with  the  witnesses  against  him,"  api)lies  only  to  cases 
before  the  United  States  Courts.  [See  Sentence  and  Pun- 
ishment §  7,  note.]  Thus  where  the  offence  charged  is  not 
capital,  and  a  deposition  may  therefore  legally  be  taken  under 
the  91st  Article  of  War,  the  Secretary  of  War  will  not  in 
general  authorize  the  personal  attendance  at  the  i^lace  of 
trial  of  a  witness  whose  office  or  duty  makes  it  necessary  or 
most  important  that  he  should  remain  elsewhere.  [See 
KiNETY  First  Article  §  3.]    XIX,  35  j  XXXYIII,  141. 

11.  An  accused  i)arty  at  a  military  trial  can  rarely  be  en- 
titled to  demand  the  attendance,  as  a  witness,  of  a  chief  of 
a  staff  corps,  much  less  that  of  the  President  or  Secretary  of 
War, — especially  as  some  minor  official  can  almost  invariably 
furnish  the  desired  facts.  If,  however,  the  testimony  of  one 
of  these  officials  be  found  to  be  necessary  or  most  desirable, 
and  the  same  cannot  legally  be  taken  by  deposition,  the  coiu?t, 
if  convened  at  a  distance,  may  properly  be  adjourned  to 
Washington  or  other  convenient  i^oint,  in  order  that  the  wit- 
ness may  be  enabled  to  attend  without  detriment  to  the 
public  interests.  XXXIX,  517.  [See  Ninety  First  Arti- 
cle §  3.1 

12.  At  whatever  place  a  court  martial  may  be  assembled, 
a  summons,  for  the  attendance  before  it  as  a  witness,  may 
legally  be  issued  to  and  served  upon  a  person  civil  or  mili- 
tary, in  any  other  jyavt  of  the  federal  domain  j  the  field  for 
the  service  of  such  a  summons  being  conterminous  with  that 


WITNESS.  485 

of  the  jurisdiction  of  the  court,  which  is  limited  only  by  the 
boundaries  of  the  United  States.  XI,  234.  [See  Court  Mar- 
tial, II  §  2.J 

13.  A  summons  may  legally  be  served  either  by  a  military 
or  a  civil  person/  but  will  in  general  x^referably  be  served  by 
an  officer  or  non-commissioned  officer  of  the  army.  A  judge 
advocate,  or  a  commanding  or  other  officer  to  whom  a  sum- 
mons is  sent  for  service,  will  not  be  authorized,  hy  emi)loying 
for  the  purjiose  a  U.  S.  marshal  or  deputy  marshal,  or  other 
civil  official,  to  commit  the  United  States  to  the  i)ayment  of 
fees  to  such  official.  XLIII,  284.  The  action,  however,  of  a 
judge  advocate  in  employing  a  deputy  marshal  to  serve  a 
summons,  where  apparently  the  service  could  not  otherwise 
be  so  effectually  or  economically  made,  has  in  a  few  cases 
been  so  far  ratified  by  the  Secretary  of  War  as  to  allow,  out 
of  the  appropriation  for  army  contingencies,  the  payment  of 
a  small  and  reasonable  account  of  charges  rendered  by  such 
official.     XXX,  536;  XXXYII,  570. 

14.  A  witness  who  has  given  his  testimony  should  in  gen- 
eral be  aUowed  to  modify  the  same  where  he  desires  to  do  so 
in  a  material  particular.  But  where  the  court  has  refused  to 
permit  a  witness  to  correct  his  statement  as  recorded,  such 
refusal  need  not  induce  a  disapproval  of  the  proceedings  un- 
less it  appear  that  the  rights  of  the  accused  have  thus  been 
prejudiced.    YII,  447. 

15.  Witnesses  should  not  in  general  be  admitted  to  the 
court  room,  but  shoidd  be  kept  as  far  as  practicable  apart, 
until  required  to  appear  and  give  their  testimony.  But  that 
a  witness  or  witnesses  may  have  been  permitted  to  remain  in 
the  court  room  and  hear  the  testimony  of  witnesses  previ- 
ously called,  cannot  affect  the  legality  of  the  proceedings. 
XXXI,  34. 

16.  A  witness  can  have  no  authority  to  discharge  or  relieve 
himself  from  attendance  on  the  ground  that  the  testimony 
desired  of  him  is  immaterial,  or  for  any  other  reason.  In  the 
civil  practice  such  an  act  would  be  a  grave  contempt  of  court. 
It  is  for  the  court  to  judge  as  to  the  materiality  or  pertinency 
of  the  evidence  of  witnesses,  and  unless  a  witness  has  been 
determined  by  the  court  to  be  incompetent  or  his  testimony 
to  be  inadmissible,  he  should  remain  and  stand  his  examina- 

""^ee  G.  O.  93,  Hdqrs.  of  Army,  1868. 


480  WITNESS. 

tion  till  duly  informed  by  the  court  or  judge  advocate  that 
his  attendance  is  no  longer  required  in  the  case.  XXXIX, 
354. 

17.  The  privilegCj  recognized  by  the  common  law,  of  a  wit- 
ness to  refuse  to  respond  to  a  question  the  answer  to  which 
may  criminate  him,  is  a  personal  one,  which  the  witness  may 
exercise  or  waive  as  he  may  see  fit.^  It  is  not  for  the  judge 
advocate  or  accused  to  object  to  the  question  or  to  check  the 
witness,  or  the  court  to  exclude  the  question  or  direct  the 
witness  not  to  answer.  Where  however  he  is  ignorant  of  his 
right,  the  court  may  properly  advise  him  of  the  same.  XI, 
200.  But  where  a  witness  declines  to  answer  a  question  on 
the  ground  that  it  is  of  such  a  character  that  the  answer 
thereto  may  criminate  him,  but  the  court  decides  that  the 
question  is  not  one  of  this  nature  and  that  it  must  be  answered, 
the  accused  cannot  i)roperly  further  refuse  to  respond,  and, 
if  he  does  so,  will  render  himself  liable  to  charges  and  trial 
under  Art.  G^.^    XXXIY,  242. 

18.  The  fees,  {per  diem  allowance  of  $3  and  expenses  of 
transportation,)  payable  to  civilians  summoned  to  attend 
courts  martial  as  witnesses,  are  fixed  by  par.  1139  of  the 
Army  Eegulations,  as  amended  by  G.  O.  278,  War  Dept., 
1864,^  and  are  paid  out  of  an  item  of  the  appropriation  for 
the  pay  department,  for  the  "compensation  of  citizen  wit- 
nesses attending  upon  courts  martial,  military  commissions 
and  courts  of  inquiry."  The  existing  law  does  not  authorize 
the  tender  or  payment  of  witness  fees  in  advance  nor  the  fur- 
nishing of  public  transportation  to  civilians,  (not  employees 

^  It  has  however  been  held  by  a  U.  S.  Circuit  court  that 
since  the  date  of  the  Act  of  Feb.  25,  18G8,  sec.  1,  (contained 
in  Sec.  860,  Eev.  Sts.,)  a  witness  was  no  longer  privileged  to 
decline  to  give  criminating  testimony.  Thus  the  court  say: 
"As  the  law  stood  before  the  i)assage  of  this  Act  a  witness 
could  decline  to  answer  a  question  when  the  answer  would 
tend  to  criminate  himself.  But  now  he  may  be  compelled  to 
answer,  when  inquiry  is  pertinent  to  any  judicial  i)roceeding, 
because  it  may  be  necessary  to  the  ends  of  justice  as  to  others, 
and  cannot  be  used  against  himself."  United  States  v.  Brown, 
1  Sawyer,  536. 

^  See  G.  0.  M.  O.  23,  War  Dept.,  1873. 

^  And  see  further — as  to  the  compensation  as  witnesses  of 
civilians  in  the  U.  S.  service — G.  0. 1)7,  Hdqrs  of  Army,  1876  j 
do.  25  Id.  1879. 


WITNESS.  487 

of  the  IJiiitecl  States,)  wlien  summoned  as  witnesses  before 
courts  martial.  Military  witnesses  are  of  course  entitled 
to  no  compensation  for  attendance  before  military  courts.^ 
XXXVII,  315. 

19.  The  fact  that  a  civilian,  who  has  attended  as  a  witness 
before  a  court  martial  is  an  emi)loyee  of  the  United  States, 
does  not  aflect  his  right  to  the  per  diem  allowance,  or  to  be 
reimbursed  his  legal  travelling  expenses,  provided  i)ublic 
transx)ortation  is  not  furnished  him.  Y,  475.  Laundresses 
duly  attending  and  testifying  before  courts  martial  are  enti- 
tled to  the  fees  of  civilian  witnesses.  XXVII,  229.  [See 
Acting-  Assistant  or  Contract  Surgeon.] 

20.  There  is  no  statute  or  regulation,  which  makes  provis- 
ion for  the  payment  of  any  fees  to  civilians  who  merely  give 
their  depositions  without  attending  the  court.    XXXIV,  261. 

21.  A  civilian  witness,  upon  his  discharge,  is  entitled  to 
receive  from  the  judge  advocate  a  certificate  setting  forth  the 
fact  of  his  having  been  summoned  as  a  witness  in  the  case 
and  the  number  of  the  days  of  his  attendance  in  that  capacity 
before  the  court.  I,  448;  V,  475;  VIII,  88;  XXV,  503.  The 
certificate  of  the  judge  advocate  is  the  proper  official  evidence 
as  to  the  fact  of  attendance,  and  is  in  general  accepted,  in  the 
absence  of  any  indication  to  the  contrary,  as  conclusive  ui)on 
the  subject.  XXXV,  483.  The  record  of  trial  will  often  be 
unsatisfactory  evidence  on  this  point,  since  a  witness  duly 
summoned  and  attending,  may  in  fact  not  be  called  upon  to 
take  the  stand ;  or  a  witness  may  appear  from  the  record  to 
have  testified  on  a  certain  day  or  days,  while  he  may  in  fVict 
have  been  in  attendance  a  much  longer  time.    XXVIII,  115. 

22.  To  entitle  a  witness  to  the  payment  of  fees,  it  is  not 
absolutely  essential  that  he  should  produce  a  formal  sum- 
mons or  subpoena  addressed  to  and  comi)lied  with  by  him,  or 

^  For  their  attendance  as  witnesses,  for  the  United  States, 
before  any  court  of  the  United  States,  they — officers  and  sol- 
diers alike;  Sec.  850,  Eev.  Sts.,  being  construed  as  applying 
to  all  military  emi^loyees — are  entitled  to  their  necessary  ex- 
l^enses,  in  going,  returning,  and  while  in  attendance,  to  be 
stated  in  items  and  sworn  to;  the  same  being  generally  to  be 
l)aid  them  by  the  Marshal.  But  being  in  the  pubhc  service 
they  are  not  entitled  to  receive  any  witness  fees  or  mileage. 
OX)iuions  of  the  Attorney'  General  of  August  2  and  Sei)tem- 
ber  27,  1878,  (XVI  Opins. .) 


488  WITNESS. 

that  li<3  sliould  liave  been  formally  summoned  in  the  case.  It 
will  in  general  be  sufficient  if  be  has  duly  attended  in  com- 
pliance with  a  verbal  or  informal  written  request  from  the 
judge  advocate,  or  even  at  the  instance  of  the  accused,  if  this 
action  has  been  acquiesced  in  by  the  judge  advocate.  A 
strict  observance,  however,  of  par.  890  of  the  Army  Eegula- 
tions  would  call  for  the  issue  of  formal  summonses  to  the  wit- 
nesses on  both  sides,  and  it  is  the  best  practice  for  the  judge 
advocate  to  cause  such  to  be  served  in  each  instance.  A 
party  cannot  entitle  himself  to  witness  fees  by  merely  appear- 
ing in  court  on  his  own  responsibility  and  not  at  the  instance 
of  either  party.     XXIII,  196. 

23.  Held  that  it  could  not  affect  the  right  of  a  civilian  wit- 
ness to  his  compensation  as  such  that,  when  on  the  stand,  he 
refused  to  testify  in  answer  to  proper  questions,  or  that  In 
answering  material  questions  he  testified  falsely.  Such  a 
witness  is  paid  for  his  attendance^  and  the  fact  that,  after  he 
has  duly  attended,  he  has  committed  a  contemi)t  or  has  been 
guilty  of  perjury,  cannot  impair  a  right  not  made,  by  law  or 
regulation,  conditional  upon  his  good  conduct  under  examina- 
tion or  his  veracity.    XLIII,  299. 

24.  The  certificate  of  the  judge  advocate  cannot  properly 
include,  in  the  period  during  which  the  i^arty  is  stated  to 
have  attended  as  a  witness,  any  time  anterior  to  the  date  of 
his  actual  attendance  in  comx^liance  with  the  summons. 
Where  indeed  a  witness  is  held  or  detained  for  any  period 
prior  to  the  trial,  or  subsequently  to  the  same  or  to  his  being 
discharged  as  a  witness,  (as  liarties  were  in  some  instances 
detained,  in  military  custody  during  the  late  war,)  he  may 
perhaijs  have  an  equitable  claim  for  comj)ensation  from  the 
approx)riation  for  army  contingencies,  or  for  relief  from  Con- 
gress.    II,  885  V,  100  J  XVI,  518;  XVIII,  590;  XIX,  697. 

25.  Where  a  i^arty  who  had  attended  as  a  witness  before  a 
military  court,  claimed,  in  addition  to  the  regular  compensa- 
tion of  $3  ]f)er  diem,  to  be  indemnified  for  the  loss  of  time  and 
injury  to  his  business  alleged  to  have  been  occasioned  by  rea- 
son of  his  being  obliged  to  attend  as  such  witness ;  held,  that 
such  claim  could  not  be  allowed  by  the  executive  branch  of 
the  government;  the  loss  and  injury  couqdained  of  being 
disadvantages  to  which  citizens  were  liable  to  be  subjected 
in  the  course  of  the  discharge  of  their  obligations  to  civil 


WITNESS.  489 

society,  and  for  which  the  law  has  provided  no  remedy.    XXII, 
264. 

26.  In  view  of  the  provision  of  Sec,  1248,  Eev.  Sts.  invest- 
ing retiring  boards  with  siich  powers  of  courts  martial  as  may 
be  necessary  to  enable  them  to  inquire  into  and  determine 
the  facts  touching  the  disability  of  officers  whose  cases  are 
referred  to  them,  held  that  a  retiring  board  might  legally 
cause  material  witnesses  to  be  summoned  to  attend  its  ses- 
sions, and  that  witnesses  so  summoned  would  properly  be 
entitled  to  the  fees  of  witnesses  before  courts  martial. 
XXVIII,  427. 

27.  Held  that  i^arties  who  appeared  and  testified  before, 
and  at  the  instance  of,  an  officer  charged  with  the  i:>relimi- 
nary  investigation  of  a  case,  but  were  not  required  to  attend 
at  the  subsequent  trial,  were  not  legally  entitled  to  witness 
fees.    XXI,  463. 

28.  The  authority  to  issue  process  to  comi^el  civilian  wit- 
nesses to  apx)ear  and  testifj',  is  vested,  by  Sec.  1202,  Eev. 
Sts.,  in  "every  judge  advocate  of  a  court  martial.''  A  judge 
advocate  of  an  inferior  court,  (see  Judge  Advocate  §  1,) 
would  thus  be  emijowered  for  the  puri)ose  equally  with  the 
judge  advocate  of  a  general  court.  The  i^resent  statute,  how- 
ever, (unlike  the  original  form,)  does  not  extend  the  authority 
to  recorders  of  courts  of  inquiry.  Further,  the  authority  being 
vested  exclusively  and  independently  in  the  judge  advocate, 
cannot  be  exercised  by  the  court.  The  attachment  is  thus  not 
a  writ  or  process  of  the  court,  but  simply  a  compulsory  instru- 
mentality placed  at  the  disposition  of  the  judge  advocate 
as  the  i)rosecuting  official  representing  the  United  States. 
XXXI,  12;  XXXIV,  178;  XXXVII,  283,  316;  XLI,  464. 

29.  To  authorize  a  resort  to  an  attachment,  there  must  have 
been  a  formal  summons,  duly  issued  and  served  upon  the  wit- 
ness, and  not  comi)lied  with.     XXXVI,  152. 

30.  Held  that  the  statute  could  not  i)roi)erly  be  construed 
as  authorizing  the  issue  of  an  attachment  to  compel  a  witness 
to  attend  before  a  commissioner  or  other  i)erson  and  give  his 
deposition.    XXXVI,  152. 

31.  The  form  of  the  process  should  be  "like"  that  em- 
ployed in  the  procedure  of  the  criminal  courts,  or  a  criminal 
court,  of  the  "State,  Territory,  or  District,"  (of  Columbia,) 
in  which  the  court  martial  is  ordered  to  sit.     XXVIII,  153. 


490  WITNESS. 

Where  there  is  no  special  form  for  the  attachment  of  witnesses 
in  criminal  cases  in  use  in  the  State,  the  statute  will  be  suffi- 
ciently complied  with  if  the  general  form  for  the  attachment 
of  a  witness  for  a  contempt  for  not  obeying  a  summons  be 
substantially  followed.    XXXVI,  152. 

32.  The  authority  to  issue  the  comi^ulsory  process  is  coex- 
tensive with  the  authority  to  issue  a  summons.  [See  §  12 
supra.]  The  judge  advocate  of  a  court  martial  in  session  in 
any  part  of  the  United  States  may  issue  an  attachment  to 
comi)el  the  attendance  before  it  of  a  witness  resident  or  being 
in  any  other  part.^    XXXYIII,  591. 

33.  A  judge  advocate  cannot  properly  direct  an  attach- 
ment to  a  U.  S.  Marshal  or  deputy  marshal  or  other  civil 
official.  [See  §  13,  sujyra.]  Some  military  officer  or  person 
should  be  designated  by  him,  or  detailed  for  the  puri^ose  by 
superior  authority.^    XXVII,  147.     In  executing  the  attach- 

^  See,  contra,  Eeport  of  Hon.  J.  Proctor  Knott,  Chairman  of 
Committee  on  the  Judiciary,  Ho.  of  Eeps.,  4G  Cong.,  1st  Sess., 
dated  April  22,  1879.  But  the  practice  has  been  in  accord- 
ance with  the  ruling  stated  in  the  text ;  and  it  was  certainly, 
never  contemplated  by  Judge  Advocate  General  Holt,  who 
originally  framed  the  provision,  (in  the  words  in  which  it  was 
enacted,)  that  the  field  for  the  service  of  an  attachment  was 
to  be  any  more  restricted  than  that  for  the  service  of  a  sum- 
mons.    See  §  12  supra. 

^Upon  the  subject  of  the  execution  of  process  of  attachment 
in  military  cases,  see  the  opinion  of  the  Atty.  Gen.  in  XII 
Opins.  501 5  also  the  directions — based  upon  the  same — of  G. 
O.  93,  Hdqrs.  of  Army,  18G8. 

Prior  to  the  adoption  of  the  Constitution,  Congress,  (then 
the  Government,)  appears  to  have  relied  ui)on  the  State  au- 
thorities for  the  necessary  i)rocess  to  compel  the  attendance 
of  Avitnesses  before  military  courts.  See  Kesolution  of  Xov. 
IG,  1779 — III  Journals  of  Congress,  392.  In  the  British  law, 
b}^  a  provision  first  incorporated  in  the  Mutiny  Act  in  the 
year  1800,  witnesses  neglecting  to  comi)ly  with  a  summons 
requiring  their  presence  at  such  courts,  are  made  ''liable  to 
be  attached  in  the  Court  of  Queen's  Bench,"  &c.  This  pro- 
vision well  illustrates  the  close  connection  between  the  execu- 
tive and  the  other  governmental  powers  in  the  British  Con- 
stitution, where  the  Sovereign  is  a  part  of  the  Judiciary  as 
well  as  of  the  Legislature.  The  fact  of  the  ex])ress  distinction 
and  separation  of  the  three  powers  in  our  own  organic  law, 
one  result  of  which  has  been  to  leave  courts  uiartial,  as  agen- 
cies of  the  executive  power,  quite  iiulependent  of  any  review 
or  control  on  the  part  of  the  U.  S.  Courts,  (see  Couirr  Mar- 


WITNESS.  491 

meut,  tlie  needful  force  may  be  employed,  but  uo  more.  XI, 
234. 

34.  Tbe  authority  of  a  court  martial  to  punish  as  for  a  con- 
tempt, being  confined  by  the  code,  (Art.  8G,)  to  cases  of  acts 
of  menace  or  disorder  committed  in  its  presence,  such  a  court 
would  not  be  empowered  to  i>unish,  as  being  in  contempt,  a 
witness  appearing  before  it  whose  attendance  it  had  been 
necessary  to  compel  by  process  of  attachment.  IX,  208,  278  j 
XXI,  215  J  XXVIII,  214. 

See  sixty  SECOND  ARTICLE  §  6. 
EIGHTY  SIXTH  ARTICLE  §  1,  2. 
NINETY  FIRST  ARTICLE  ^  1,  6,  7. 
ACCOMPLICE. 
ADJOURNMENT  $  5. 
ARREST,  I  §  9. 
BOARD  OF  SURVEY  $  2. 
COURT  MARTIAL,  I  ^  5,  8. 
EVIDENCE  $  3. 
INSANITY  ^  2. 
JUDGE  ADVOCATE  §  19. 
PROSECUTOR. 

TjAL,  I  §  1,)  has  also  no  doubt  availed  to  preclude  the  devolv- 
ing upon  the  federal  tribunals  of  a  power,  fitly  conferred  in 
the  foreign  statute,  but  which,  with  us,  would  be  anomalous, 
exceptional  and  out  of  harmony  with  our  constitutional  sys- 
tem. 

It  may  be  added,  in  regard  to  the  exercise  of  the  authority 
to  issue  compulsory  process,  as  vested  in  judge  advocates  by 
the  Act  of  18G3,  (Sec.  1202,  Eev.  Sts.,)  that  the  occasions  of 
such  exercise  have  been  unfrequent  in  iDractice,  and  no  case 
is  known  in  which  such  authority  has  been  materially  abused. 


INDEX. 


A. 

Page. 
ABSENCE   WITH  EEAVE. 

As  affecting  amenability  to  military  jurisdiction.  .10, 215-216 

"         ''       procedure  under  Art.  59 31,  note. 

«         '^       authority  of  commander  to  order  court 

martial 54 

«         "  "        to  act  on  proceedings  of  court 

martial 89 

ABSENCE  ^VITHOUT  EEAVE. 

As  affecting  operation  of  statute  of  limitations 86-87 

In  what  acts  it  may  consist 101 

Waiver  of  charge  of,  by  putting  on  duty 101 

As  distinguished  from  desertion 220-221 

Finding  of  under  charge  of  desertion 264 

Forfeiture  of  pay  on  account  of . .   225,  364-365 

ACCEPTANCE  OF  APPOINTMENT. 

As  giving  effect  to  ai)pointment 106 

"  initiating  right  to  receive  pay 106,  362 

ACCEPTANCE  OF  RESIGNATION. 

How  and  when  it  takes  effect 430 

Effect  of  notice  of  to  officer  430 

As  affecting  authority  to  withdraw  resignation 430-431 

ACCOMPLICE. 

Status  of  if  admitted  to  testify 101 

Testimony  of  to  be  received  with  caution 257 

ACCUSED  AS  A  WITNESS. 

When  competent  under  Act  of  March  16,  1878 258^  482 

Mode  of  examination  of 258^  482 

493 


494  INDEX. 

ACTING  ASSISTANT  COMMISSARY. 

Page. 

Legal  significance  of  tlie  title 368 

Detail  and  pay  of  captain  as 368 

ACTING  ASSISTANT  SURGEON. 

Amenability  as  a  civilian  to  military  jurisdiction 48, 102 

Xot  eligible  as  a  member  of  a  court  martial. 59, 102 

Cannot  represent  a  ^'  corps  "  in  sense  of  Art.  82 65 

"       be  subject  of  a  court  of  inquiry 97 

Status  of  under  bis  contract 102 

How  far  subject  to  military  orders 102 

Eight  of  to  fees  as  witness  before  court  martial 102 

ACTION  ON  PROCEEDINGS. 

By  ^'  the  ofticer  ordering  the  court,"  &c.  (Art.  104.). .     89-91 

''       "     President 389-390 

u       u     reviewing  authority,  generally 434-439 

Statement  of  in  record 418 

ADDING  TO  PUNISHMENT. 

Principle  that  punishment  in  sentence  cannot  be  in- 
creased   , m,  437, 451 

Application  of  to  sentences  of  imprisonment 286,  287 

"  '^  "  "  "reprimand 428 

"  "  "  "  '^  suspension 469 

ADDITIONAL  AID-DE-CAMP. 
Status  of,  as  officer  of  regular  army 104 

ADDITIONAL  CHARGE. 

Effect  of  introduction  of  after  court  sworn Q^ 

Introduction  of  after  arraignment 148 

ADJOURNMENT. 

From  day  to  day,  authentication  of 103 

Statement  of  in  record 103 

Adjournment  sine  diej  effect  of 103 

"  to  quarters  of  sick  witness 103 

Authority  of  president  to  adjourn  court 392 

ADMINISTRATION. 
Of  effects  of  deceased  officer  or  soldier 100 


INDEX.  495 

ADVERTISEJWKNT. 

Page. 

Eequirement  as  to  in  Sec.  3700,  R.  S 181 

Puri)ose  of,  as  a  protection  to  United  States 182 

Effect  of,  as  a  pledge  to  the  iiublic , 182 

Contract  not  to  depart  from 183, 184 

Authority  to  dispense  with 185-187 

ADVIfSINO  TO  DESERT. 
Nature  of  the  offence.    (Art.  51.) 24 

AFFIDAVIT. 

Use  of  by  board  of  survey 125 

Admissibility  of  in  evidence 256 

AID-DE-CAinP. 

Of  General  and  Lieut.  General,  status  of 103-104 

Effect  of  rank  of  on  courts  martial 104 

'^Additional,"  status  of 104 

Aids  of  ofiBcer  assigned  to  command  as  brevet  general.  134-135 

AEASKA. 

Citizenship  of  inhabitants  of 104 

Military  government  in 104-105 

Arrest  for  introduction  of  liquor  in  as  Indian  country .  105,  note 

AECATBAZ  ISLAND. 

Status  of  discharged  soldier  confined  at 213 

Authority  of  post  commander 381-382 

ALIEN. 

Eight  of  to  acquire  citizenship  by  military  service  ....  105 

''      "  "        ''  "  "    service  in  navy 105 

Desertion  by — extenuation  of 224 

ALLOIVANCES. 

As  distinguished  from  pay 135,  3G2 

Clothing  allowance 172-173 

Allowance  for  quarters 309,  367,  note,  370,  371 

"  ''fuel 367,  note,  370, 371 

Forfeiture  of  allowances 172-173, 271, 362 

AITIENDMENT  OF  €HAR€^E. 

Authority  of  court  to  cause  to  be  made 155 

"         "  judge  advocate  to  make 155, 298 


496  INDEX. 

AMEWBMENTS  TO  COWSTITUTIOW. 

Page. 

Effect  of  1st.  on  form  of  oath  of  witness 75 

Case  of  civilian  as  case   "arising  in  land  forces"  in 

sense  of  Yth 49, 213,  note. 

Meaning  of  phrase  "  put  in  jeopardy  "  in  Yth 83 

Application  of  rule  of  compensation  in  Vth.  to  cap- 
tured property 140 

Authoiity  of  executive  officer  to  award  compensation 

under  Yth 168 

Eight  of  recovery  of  compensation  under  Yth  for  prop- 
erty seized  in  war 168-169 

Eight  of  public  em^^loyee  to  comijensation  under  Yth .  179 
Trial  of  civilian  by  court  martial  as  precluded  by  YIth .  211 
General  application  of  Yth,  YIth,  and  Ylllth 448,  note. 

APPEAI.. 
Significance  of  the  term  in  military  law 105 

APFOI]\TME«fT. 

Effect  of  accei)tance  of 106 

Date  from  which  takes  effect 106 

Commencement  of  right  to  pay  under 106 

Date  of  as  fixing  relative  rank 106 

Original  order  of  appointment  as  fixing  same 106 

By  President,  of  "  inferior  officers" , 106-107 

Of  second  lieutenants  under  Act  of  June  18,  1878 ....       107 

Prohibition  of,  by  Act  of  1878 107-108 

Of  assistant  surgeons  to  rank  of  captain 108 

"  captain  of  infantry  as  asst.  quartermaster = . .       108 

"  civilians  in  general  to  army  office  ...   108-109 

"  "       under  special  authority  of  Congress .  109,  461-464 

By  President,  with  a  view  to  retirement 109 

With  back  rank 109 

"       "       pay 109 

When  appointing  power  exhausted  in  a  case 109 

Authority  to  re-make  appointment  as  of  earlier  date. .       109 

Appointment  of  regimental  staff  officers 110 

"  "    non-commissioned  officers - 110-1 11 

"  "    cadets 136-138 


INDEX.  497 

APPROFRIATIOIV. 

Page. 

Of  public  funds  cauuot  be  made  by  executive  official . .       1G5 
"      "         "       as  affecting  authority  to  make  con- 
tracts   186-189 

Permanent  appropriation 189 

Cannot  be  diverted  from  purpose  expressed  in  Act 370 

As  conveying  implied  authority  to  acquire  land,  &C.405,  note. 

APPROVAL    OF  PROCEEDDIVGS. 

Under  Art.  104 80-91 

"        "     106 91 

"        "     111 92 

Effect  of,  generally,  on  sentence 273,  435 

By  the  President,  as  reviewing  authority 389-390 

"  reviewing  officer,  generally , . .       435 

ARMS— BSSUE   OF. 

For  use  of  States  or  Territories. 131 

"      "    "  Colleges 174 

Eeturns,  to  account  for 174, 355 

ARMS— SALE  OF. 

Authority  for  making  in  general 404,  note. 

By  soldiers  prohibited 443 

Under  Sec.  1241,  Eev.  Sts 443 

ARMY— EMPEOYMEIVT     OF     FOR     CBVFL 
PURPOSES. 

Under  Art.  lY,  Sec.  4,  of  Constitution 111-112 

On  posse  comitatiis 112, 380-381 

As  affected  by  Act  of  June  18, 1878 112,  380-381 

Under  Sec.  5298  E.  S 113 

"       Sees.  2150  &  2152,  E.  S.  113-114 

In  removing  intruders  from  Indian  reservation 114 

"         "        trespassers  from  military  reservation 114 

Proper  attitude  of  military  till  actually  employed 114 

Authority  to  detail  officer  for  instruction  of  Indian 

youth 115 

Employment  of  engineer  officer  on  civil  work 158 

"  ^"  officer  of  army  as  Indian  agent 115, 159 

'^  "        "     ^'      ''     in  taking  census 115 

"  *'  colored  troops  hj  railroad  company .  .175-176 

32  D 


498  INDEX. 

ARMT  REGULATIONS. 

Page. 

Distinguished  from  statutes 116 

Authority  of  President  to  make 116,  note. 

Eegulations  cannot  legislate  j 117 

Or  contravene  statute ; 117 

"  trench  upon  the  province  of  statute 117 

Sanction  of  existing  regulations    117-118 

The  law  in  regard  to  naval  regulations 117 

Authority  to  modify  existing  regulations 117 

Codification  under  Act  of  1879 118 

Breach  of  regulations  how  punishable 118 

ARRADGIVMENT. 

Introduction  of  new  charge  after 68 

Statement  of  in  record 417 

ARREST,    (iniBfltary.) 

Breach  of  by  officer.     (Art.  65.)     50-51 

Degree  of  restraint  of  soldier  held  in 51 

Unreasonable  detention  in.     (Art.  70.) 52 

Eelease  of  officer  from.     (Art.  71.) 52-53 

Limitation  of  time  for.     (Art.  103.) 88 

By  military,  of  civilians 113, 114 

Form  of  in  case  of  officer 119 

Not  essential  preliminary  to  trial 119 

Officer  cannot  demand 119 

By  whom  may  be  imposed 119 

Authority  of  court  to  order 201 

Close  arrest  of  officer 50-51, 119, 120 

Limits  generally  assigned 119 

Termination  of  arrest  by  putting  on  duty 51, 120 

Protracted  arrest  ground  for  mitigation  of  sentence  . .       120 
Arrest  of  member  of  court  martial 120 

"     does  not  affect  right  to  prefer  charges  nor  right 

to  pay 120, 154 

"      of  witness  attending  court  martial 120 

Soldier  in  arrest  not  in  general  to  be  ironed 121 

Status  of  arrest  not  involved  in  suspension    469 

ARREST.    (By  civil  authorities.) 

Application  for  to  military  authorities.     (Art.  59.) 29-31 

Period  of,  not  required  to  be  made  good  to  service ....       121 


INDEX.  499 

Page. 
ARREST— Contiamed. 

Status  of  soldier  released  on  bail  from 31, 121 

Does  not  affect  right  to  pay 121 

Disposition  of  soldier  in  arrest  for  crime 121,  note. 

Exemption  from  arrest  for  debt 122 

ARTICIiES  OF  ll^AR. 

General  rule  of  construction  of 458 

ARTIFICIAL  EIMBS. 

Honorable  discharge  not  necessary  to  entitle  to 122 

Eight  to  not  affected  by  a  desertion 122 

Certain  employees  at  arsenals  held  entitled  to 122 

ASSIONMENT  OF  CEAIM. 
Under  Sec.  3477,  E.  S , ...       166 

ASSIGNMENT  OF  CONTRACT. 

As  prohibited  by  Sec.  3737,  E.  S 190 

Effect  in  general  in  nulhfying  contract 190,  note. 

Authority  to  waive  objection  and  recognize  as  valid.  190,  note. 

"         of  inferior  officer  to  consent  to 190, 191 

Power  of  attorney,  when  operates  as 191 

ASSIGNMENT  OF  SOLDIER'S  FAY. 

Invalid,  by  Sec.  1291,  E.  S 3G9 

Order  for  i)ay  not  an  assignment 369-370 

ASSISTANT  QUARTERMASTER. 

Captain  of  infantrj^  eligible  to  appointment  as 108 

ASSISTANT  SURGEON. 

Promotion  by  operation  of  law 108, 122 

Eelative  rank  of  under  Act  of  July  28,  1866 123 

ATTACHMENT.    (Of  property.) 

Of  pay  of  officer  or  soldier 160-161 

"  property  of  officer,  &c.,  required  in  the  service 161 

"  necessary  baggage  of  officer , 161 

ATTACHMENT.    (Of  witness.) 

See  Witness  .  '. . . ,  489-491 


500  INDEX. 

AUTHENTICATSOJV. 

Page. 

By  Secretary  of  War  of  approval  of  sentence  by  Presi- 
dent   91 

"    judge  advocate  of  proceedings  of  court 301 

Of  proceedings  and  sentence,  form  of  in  record 418 

"AUTHORIZED." 

Construction  of,  in  statute 459 

A^^AITIMG  ORDERS. 
Pay  of  officer  in  status  of 367 


B. 

BAIL. 

Soldier  released  on  to  be  caused  to  appear  for  trial 31 

"  "         ''    may  be  returned  to  duty 121 

Unknown  to  military  law  and  practice 124 


BALE  AMD  CHAIN. 

As  a  punishment  in  the  army 449 

BAND. 

Eefusal  by  member  of  to  play,  where  not  an  offence. . .  10 

BIDDER. 

Bondof,  under  Act  of  April  10, 1878 130 

When  entitled  to  award  of  contract 182-183, 184 

Bid  of,  subject  to  be  rejected  for  fraud 183 

Procedure  where  bid  rejected , 183 

Authority  of  to  withdraw  bid 183 

Effect  of  acceptance  of  bid  by 183 

BOARD  OF  INVESTIGATION. 

Authority  and  scope  of 124 

Distinguished  from  a  court 124 

Members  may  make  separate  reports 125 

BOARD  OF  SURVEY. 

Not  a  court 125 

Its  opinion  not  a  criminal  finding 125 


INDEX.  501 

BOAHI>  OF  SURVEY— Contmiied. 

Page. 

Cannot  be  sworn,  or  administer  an  oath 125 

May  receive  affidavits 125 

Not  to  decide  on  statement  of  interested  party  alone.  125 

Proceedings  not  effectual  till  approved. 126 

Authority  of  as  affected  by  provision  of  Art.  17 6, 126 

"        "     "        "        "  previous  action  of  court  of 

inquiry 126 


BOND.    (Of  disbursing:  ©Mcer.) 

To  be  executed  by  all  the  parties 126 

"    ^'  formally  sealed 127 

Surety  to  be  bound  for  whole  amount 127 

^'       cannot  qualify  obligation 127 

Officers  of  the  army  as  sureties 127-128 

Married  women  and  females  as  sureties 128 

Extension  of  bond 128 

Eevival  of  expired  bond 128 

Eelease  of  sureties  by  Secretary  of  War 128 

Sureties  not  discharged  hj  delay  to  sue 128 

Authority  of  Secretary  of  War  as  to  acceptance  of 

security 128 

Sureties  to  justify  severally 128 

Form  of  justification  . . , 128 

Modification  of  same 129 

Stamp  not  required  for  bond  or  justification 129 

(Of  contractor.) 

Eequirement  as  to  seals 129 

Members  of  family  as  sureties - 129 

Bond  of  contractor  for  '^  personal  services  " 129 

Non-liability  on,  after  settlement 196 

(Of  bidder.) 

Under  Act  of  April  10, 1878— ObHgation  of 130 

(Of  College,  &c.,  for  arms.) 

If  bond  official,  obligor  to  be  duly  emjiowered 130 

Sureties  not  to  be  persons  connected  with  institution .  130 

The  obligation  to  be  unconditional 130 

Discretion  of  Secretary  of  War  as  to  requiring  security .  131 

Acceptance  of  personal  bond  in  lieu  of  official 131 


502  INDEX. 

Page. 
BOND.    (Of  Oovei*iior  of  State,  &c.,  for  arms.) 

Official  bond  contemplated  by  statute ,       131 

Governor  bow  to  be  em^jowered 131 

Personal  bond  not  to  be  accepted 131 

BOUNTY. 

Distinguislied  from  pay 132 

And  from  ordinary  allowances 132 

Eigbt  to,  on  honorable  discharge  after  requisite  serv- 
ice  132-133 

N^ot  forfeited  by  desertion,  if  soldier  honorably  dis- 
charged   132-133, 233 

Euling  of  Sui)reme  Court  in  Kelly's  case 133,  note. 

Eight  to  bounty  as  affected  by  promotion 133 

BREACH  OF  ARREST. 

Byofficer.     (Art.  65.) 50 

'-'  soldier,  an  offence  under  Art.  62     44 

BREVET  RANK. 

:N"ature  of 134 

Eff'ect  of  in  entitling  to  precedence  on  courts,  &c 134 

"      '^   where  officer  specially  assigned  to  duty  ac- 
cording to 134 

"      "    such  assignment  of  colonel  as  department 

commander 134 

Authority  of   colonel  so  assigned  to   order  general 

courts 53-54, 134 

Allowance  to  colonel  so  assigned  of  aids-de-camp 134-135 

Brevet  rank  of  officers  transferred  from  volunteers,  &c., 

to  regular  army 479 

BRICiADE. 

Constituents  of 56 

"  Separate,'^  how  constituted 56-58 

Effect  of  merger  of  in  another  command 90 

BURGEARY. 

Definition  of  at  common  law 135 

Offence  not  within  definition  how  chargeable 135 


INDEX.  503 

0. 

Page. 
CADET. 

Appointment  as,  of  unemancipated  minor 136 

Eligibility  of,  as  affected  by  residence  of  parent 136 

"           "   wliere  parent  resides  out  of  U.  S 136 

**  '^    to  appointment  from  district  of  parent's 

military  station 136 

Authority  of  member  of  Congress  to  nominate 136, 137 

Effect  of  redistricting  a  State  on  authority  to  nominate .  136, 137 
"     "            "          "     "      "  proper  crediting  and  ap- 
pointing of 137 

Provisional  appointment,  nature  of 138 

Eight  of  j)rovisional  appointee  to  appointment  to  va- 
cancy    138 

Reappointment  of  regular  nominee  to  fill  his  own  va- 
cancy     138 

Amenability  of  cadets  to  trial  for  violation  of  Eegula- 

tions 138 

Eeappointment  of  cadet  discharged  as  deficient 138 

Eight  to  service  pay  on  account  of  ser\ace  as  medical 

cadet 367 

CAMP   FOLLOWER. 

Amenabihty  of  to  military  jurisdiction 48 

Status  of  post  trader  as 384 

CAPTURED  PROPERTY. 

General  priucii)le,  as  to  its  vesting  in  the  State 4, 139 

Application  of  i)riucii)le  to  real  and  personal  property 

in  late  war 139 

Disposition  of  by  confiscation 139 

'•            "    under  Act  of  March  12,  1863 139 

Eight  of  owner  to  compensation  for 140 

"      to  rent  for  i^remises  occupied  jure  belli 140 

Capture  distinguished  from  imi^ressment .   .  140 

Eight  of  owner  to  re- captured  property  • 140 

Claim  of  salvage  for  same 140,  444-445 

Eight  of  civilian  to  withhold  captured  articles 14 


504  INDEX. 

CASHIERING. 

Page. 

How  formerly  distinguislied  from  dismissal 141 

No  longer  distinct  in  law 141 

Significance  of  sentence  "to  be  cashiered  " 141 

Term  "  cashiered  "  dropped  generally  from  the  Code. .  141 

CERTIFICATE  OF  ATTENDANCE. 
See  Witness 487, 488 

CERTIFICATE   OF   MERIT. 

To  whom  grantable  under  Sec.  121G,  R.  S 141 

Discharged  soldier  not  eligible  for 141 

CESSION  OF  JURISDICTION. 
Exclusive  jurisdiction  over  land,  not  acquired  by  mere 

occupancy ; 141 

Nor  by  reserving  land  for  military  purposes 141-142 

Modes  of  obtaining  the  same 142 

Effect  of  consent  of  State  to  purchase  of  land  by  U.  S . .       142 

Meaning  of  term  "purchase"  in  this  connection 142,  note. 

"        "      "     "  exclusive  legislation "  in  Constitu- 
tion   142,  note. 

Requirement,  as  to  consent  of  State,  of  Sec.  355,  R.  S .  142-143 

Qualified  cession  by  State,  effect  of 143 

General  effect  of  cession  of  exclusive  jurisdiction  on 
personal  rights  and  obligations 144 

CflAEEENGE. 

To  fight  a  duel.     (Art.  26.) 14 

Of  member  of  court  martial.    (Art.  88.) 70-73 

"         "         "       "      of  inquiry.     (Art.  115.) 97 

CIIAPEAIN. 

Eligible  to  detail  as  member  of  court  martial  j 58 

Or  as  judge  advocate 296 

CHARACTER. 

Statement  of  on  discharge  paper 231-232 

Of  accused,  evidence  of. 254 

CIIAROE. 

Form  of  under  Art.  62 47 

Limit  of  time  for  service  of 52 


EN^DEX.  605 

CHARGE— Continwed. 

Page. 

Formal  parts  of ■. 145 

Essentials  to  legal  sufficiency  of. „ 145-146 

Xot  to  be  technically  worded 140 

How  may  be  entitled 14G 

To  be  laid  under  i)roper  Article 140 

When  may  constitute  a  sufficient  pleading  under  Art. 

02 140-147 

Faulty  to  charge  a  secondary  in  lieu  of  principal  offence .       147 

Charging  same  act  under  different  forms 147 

MultipUcation  of  charges 147 

Accumulation  of  charges 147 

Election  as  to  prosecution  of  charges 147-148 

Consolidation  of  sets  of  charges 148 

Introduction  of  additional  charge  after  arraignment . .       148 

Irregular  forms  of  charge 148 

Averment  of  former  convictions 148, 149 

Specification  to  be  appropriate  to  charge 149 

"  ,  misnomer  or  misdescription  in 149 

"  exi)ressed  in  the  first  person,  irregular. .       150 

Double  pleading 150 

Written  order  or  other  writing,  how  set  forth 150 

Averment  of  time  and  place 150-152 

Use  of  terms  "on  or  about"  and  '^at  or  near" 151 

Omission  of  averment  of  time  or  place 152 

Statement  of  matters  of  evidence 152-153 

Joint  charges 153 

Desertion  not  chargeable  as  joint  offence 153 

By  whom  charge  may  be  i)referred 154 

How  to  be  authenticated 154 

To  whom  to  be  preferred 154 

Disi)osition  of  charges  against  superior  officers 154 

Eeferring  of  charges  to  court  for  trial 154-155 

Withdrawal  of  charges 155 

Amendment  of,  &c 155 

Appending  of  list  of  witnesses 155 

Form  of  charge  in  case  of  drunkenness 247 

CIIJEROKEi:  NATION. 

See  Indian  Wak , 293 


506  INDEX. 

CHIEF  inUSfiCIAW. 

Page. 

Military  status  of » 156 

Amenability  of  to  jurisdiction  of  inferior  court 156 

Xot  a  uou -commissioned  officer ; 156 

o^or  subject  to  reduction  to  ranks . . 156 

CEaiEF  OF  ENOII^EERS. 
Authority  of  to  order  court  under  Art.  81  , 63 

CHIEF  OF  ORBl^ANCE. 

Authority  of  to  order  court  under  Art.  81 63 

Returns  to  be  made  to,  under  Sec.  1167,  E.  S 355 

CHIEF  SICJNAI.  OFFICER. 

Authority  of  to  order  court  under  Art.  81 63 

'•'  "    "  designate  officers  entitled  to  mounted 

pay 368 

CITIZENSHIP. 

Of  inhabitants  of  Alaska 104 

Right  of  alien  to  acquire  by  military  service 105 

Forfeiture  of  by  desertion 225 

Restoration  of  by  i)ardon 225 

CIVIE  ET?IPEOYMENT  OF  ARMY. 
See  Army— EMPLOYMENT  of  for  civil  purposes  .  111-115 
"   Posse  Comitatus .380-381 

CIVIEIAN.    (ABneinatoility  of  to  miliitary  jta- 
risdicfioM.) 

For  relieving  the  enemy,  «&c.,  under  Arts.  45  and  46  . .        20 

After  discharge,  &c.  under  Art.  60 37 

In  case  of  retainers  to  the  camj)    48 

"   civil  employees  in  the  field 48,  49 

"    clerks  employed  at  military  posts,  &c 49,  50 

"    superiutendents  of  national  cemeteries 50, 344 

"    discharged  soldiers  held  as  jjrisoners 212, 214 

"    inmates  of  "  Homes" 214, 216 

"   paymasters'  clerks 372 

*'    spies 455 


(Elfly^abfliity  t&  Miillfitaa-y  appoiEitMiCDaft.) 
See  APPOINTI.IENT 107, 108-100 


INDEX.  507 

CIVII^IAN.    (Competeifflcy  to  prefer  cbarg^es.) 

Page. 

See  Charge 154 

civil.  OFFICE. 

Prohibition  of  Sec.  1222,  R.  S 157 

ConstitiitioDality  of  same 157 

''  Civil  office  "  defined 157 

Embraces  State  and  municipal  office 157 

Distinction    between    office    and    employment,   illus- 

tirated   157-158 

Civil  employment  of  engineer  officers „       158 

Employment  as  Indian  agent 115, 159 

Enlisted  men  not  affected  by  Sec.  1222 159 

Federal  office  under  executive  order  of  Jan.  28,  1873.       159 

Eligibility  to  civil  office  of  retired  officer , 159 

Civil  office  in  a  Territory 159 

Holding  by  military  officer  of  diplomatic  or  consular 

office 159-160 

Application  of  Sec.  1223,  E.  S.,  to  retired  officers 160 

CIVIIi  PHOCESS. 
Liability  to  attachment  of  pay  in  hands  of  disbursing 

officer 160-161 

"         "  '^  "   officers'  baggage 161 

"         "  "  "   property  required  for  use  in 

service 161 

Service  of  process  of  State  courts  at  military  posts, 

&c 161-162 

"        ^'        ''         ''  Territorial  courts  at  same  ....  162-163 

Authority  of  State  court  to  enjoin  a  U.  S.  officer 163 

Process  of  U.  S.  courts  not  to  be  interfered  with 161 

Liability  of  officer  for  obstructing  XJ.  S.  process 161 

Civil.  RIGHTS. 

Of  colored  persons  under  Sec.  1977,  E.  S 164 

Liability  for  denying  same 161 

CI.AIITIS. 

Authority  to  reopen  settled  claims 164-165 

Payment  of  claims  dependent  on  appropriation  by  Con- 
gress   165 

Futile  claims,  not  to  be  entertained 165 


508  INDEX. 

CliAIMS— CoMtimied. 

Page. 

Assignment  of  claims 166 

Conflicting  claims 166 

Interest  on  claims,  when  payable 166 

Claims  for  unliquidated  damages 166-167 

^'        "    "just  compensation"  for  taking  of  i)rivate 

property 140, 168, 179 

War  claims 140, 168-169 

Claims  under  Act  of  July  4,  1864,  &c 169-171 

"      on  implied  contract 166-167, 179 

Amenability  of  civilian  clerk  to  military  jurisdiction . .  49,  50 

Authority  to  employ  for  court  martial 171 

Compensation  and  payment  of . .       172 

Not  required  to  be  sworn , , .       172 

"  to  be  allowed  to  remain  at  finding  or  sentence .  68-69, 172 
Eight  to  pay  of  officer  for  services  as  clerk  to  court 

martial 172 

Extra-duty  pay  of  soldiers  detailed  as  clerks  to  court 

martial 260-261 

C1.0SS:  ARKEST. 

Of  officer,  nature  of 50, 119, 120 

Breach  of 50,  51 

ClLOTIIIMCt  Ai:.E.OWANCE. 

For  clothing  not  drawn 172 

When  forfeited  by  sentence 172-173, 271 


For  clothing  in  kind 173 

Not  affected  by  forfeiture  in  sentence 173, 271 

CI.®THSNG— EOSS  OF. 

Eemedy  in  case  of  loss  by  officer 173 

"        of  soldiers  under  army  regulation 173 

Authority  of  Secretary  of  War  to  make  gratuitous 

issues 173-174 

When  Congress  must  be  applied  to 174 

COILILEGE,  (or  Ufiiiversity.) 

Authority  to  detail  officer  as  professor  of 174 

"  "  furnish  arms  to 174 

Eeturns  to  be  made  of  arms  furnished 174 


INDEX.  509 

C01LL<ECrE,  (or  University)— Coiitmued. 

Page. 

What  colleges  included  in  statute 174-175 

Effect  of  Act  of  May  4,  1880 175 

Bond,  on  furnishing  arms  to 130-131 

COI.OIVE1L. 

When  authorized  to  convene  general  court 53-54, 134 

Authority  to  act  on  proceedings  as  department  com- 
mander          91 

Allowance  of  aids  as  brevet  general 134-135 

Eight  to  command  department,  in  absence  of  superior.       229 

C01L0I1EI>  PEKSOIV. 

See  Civil  Eights 1G4 

Colored  Troops 175-176 

€OEOREI>  TROOPS. 

An  employment  of,  not  recommended 175-176 

COMMAND. 

Failure  to  assume,  when  an  offence 44-45 

Authority  to  convene  court  an  attribute  of 54, 200 

So,  as  to  authority  to  act  upon  proceedings 89-90, 200 

Devolution  of 229 

J^one  possessed  by  president  of  court 392 

Suspension  from 468-471 

"  COMMANDING  OFFICER." 

Disrespect  to.     (Art.  20.) 8 

Authority  of  to  arrest  officer 119 

COMMISSARY    OENERAE     OF    SUBSIST- 
ENCE. 

Authority  as  to  settlement  of  claims 169-171 

COMMISSARY  SERGEANT. 

Duty  of  under  Sec.  1142,  E.  S 176 

Cannot  be  charged  with  stores  not  belonging  to  U.  S.       176 

COMMISSION. 

See  Appointment 106 

COMMUTATION. 
Nature  of , 94 

Distinguished  from  mitigation r, ..... .         94 


510  INDEX. 

COMPANY  COMMANDER. 

Page. 

Eelation  of  to  non-commissioned  officers 176 

Duty  and  liability  of  as  to  company  fund 177-178 

COMPANY  FUN1>. 

Offence  of  making  false  return  of 4 

Nature  of,  as  public  money 177 

Source  of 177 

When  reverts  to  tlie  U.  S , 177 

How  disposed  of  and  accounted  for 177 

Liability  for  misuse  of,  «&c 177-178 

COMPENSATION  FOR  EXTRA  SERVICES. 

Of  clerk  for  services  as  acting  chief  clerk 178 

*'  soldier  for  services  as  acting  assistant  surgeon 178 

**        ^'      "        "         "   spy  or  scout,  in  war 178 

"  postmaster  for  services  as  clerk  to  ordnance  officer .  178-179 

"  officer  for  services  rendered  to  a  State 179 

As  distinguished  from   compensation  for   a  distinct 

office , 434 

COMPENSATION  FOR  PROPERTY  TAKEN 
FOR  PUBI.IC  USE. 

IsTot  payable  for  x>roi)erty  captured  from  enemy 140 

Executive  department  not  empowered  to  award  without 

authority  of  Congress 168 

In  case  of  property  taken  under  necessities  of  war . . .  168-169 
Employee  of  U.  S.  entitled  to  equally  with  any  other 

citizen 170 

COMPENSATION  OF  \YITNESS. 
See  Witness 486-489 

COMPOSITION  OF  COURT  MARTIAE. 

As  to  class  and  number  of  members.     (Art.  75.) 58-60 

"    "  eligibilityfor  detail  of  regular  officers.  (Art.  77.).        60 
"    "  the  rank  of  members.     (Art.  70.) 60 

CONDUCT  TO  THE  PREJUDICE  OF  GOOD 
ORI>ER  ANB  MILITARY  ©ISCIPI.INE. 

Sixty  Second  Article  . 41-47 


INDEX.  511 

CONDUCT    UNBECOMING    AN    OFFICER 

ANI>  A  GENT1.EMAN. 

Page. 

See  Sixty  First  Article 37-41 

CONFESSION. 

Admissibility  of  in  evidence , 258 

Of  inferiors  to  superiors  to  be  admitted  with  caution . .  258 

Mere  silence  not  confession 258 

CONFINEMENT. 

Of  soldiers  in  arrest.     (Arts.  GG  and  70. ) 51,  52 

"  prisoners  in  penitentiary.     (Art.  97.) 80-82 

In  general,  see  Imprisonment 284-290 

"  CONFIRMATION." 

Synonymous  with  "  approval." 91 

CONFIRMING  OFFICER. 

See  One  hundred  and  fourth  Article 89-91 

"    One  hundred  and  sixth  Article 91 

"    EEViEwiNa  Officer 435, 436 

CONGRESS. 

As  to  power  to  make  rules  concerning  captures 4 

"    "      "       "  dispose  of  the  public  property ....  4,  336-337, 

400-401 
"  of  to  authorize  api3ointments  in  army. .  .106-109 
u      u    u  redress  injury  resulting  from  date  of 

ai^pointment 109-110 

"      "    "  authorize  emjDloyment  of  officers  on 

civil  duty .  -       115 

"      "    "  authorize  compensation  for  property 

taken  for  public  use 168 

function  of,  to  authorize  settlement  of  claims . .  164-169 

authority  to  (contract  with  member  of 189-190 

power  of,  to  aftbrd  relief  to  contractor 195 

^'       "    "      '^        "      for  loss  of  clothing,  &c., 

by  soldier 173-174 

"       "    "  authorize  trial  of  civilian  by  court 

martial 212-213 

"       "    ^^  afford  relief  to  a  dismissed  officer..       230 
"       a    li  reduce  pay  of  soldier  pending  enlist- 
ment  c 251-252 


512  INDEX. 

€©N<GISESS— Continwed.  Page. 

As  to  power  of^  to  authorize  emi)loymeiit  of  officers  in 

foreign  service 269 

"    "      i<'       "    "  make  reservations  of  public  lands.  336-337, 

note. 

"    "      "        ^'    *^  relinquish  reservations 337,  note. 

"    "      "       "    "  make  return  of  forfeited  pay 358 

^^  the  fountain  of  general  relief  where  executive  not 

authorized  to  act 109-110, 425 

"  to  1)0 wer  of  to  relieve  from  the  consequences  of  an 

executed  sentence «   453 

CONSTITUTION  OF  COURTS  MARTIAI.. 
Authority  to  constitute  general  courts.     (Arts.  72  and 

73.) 53-58 

"  "         <<  inferior  courts.     (Arts.  80,  81 

and  82.)..... 61-65 

"  of  President  to  order  courts  martial ...  53, 388-389 

CONSTITUTION  OF  THE  UNITE©  STATES. 
Art.  I,  Sec.  8  §  11,  as  to  power  of  Congress  to  make 

rules  concerning  captures 4 

a    u     a     "  ^' 12,  as  to  power  of  Congress  to  raise,  &c., 

armies 138, 157, 252 

"    ^*      ^'     "  "  14,  as  to  power  of  Congress  to  govern 

and  regulate  the  army 116,  252 

u    u     u     u  u  ii_i6j  as  to  the  war  power  of  Congress .       480 
u     u     u     u  u  12^  14^  15^  1(5^  as  to  the  distinction  be- 
tween Army  and  Militia 478 

a     it      u     u  a  is^  as  to  the  construction  of  the  word 

"  necessary" -  .368,  note. 

u    u     "     9  §  6,  as  to  effect  of  i^rohibition  as  to  use 

of  public  money 274,  357,  note. 

Art.  II,  Sec.  2  §  2,  as  to  appointnient  of  "  inferior"  of- 
ficers   106-107,  462,  484,  note. 

"     "      "     "  "  "  as  to  meaning  of  the  term  *'  courts 

of  law" 464,  note. 

Art.  lY,  Sec.  3  §  2,  as   to  meaning  of  word  'terri- 
tory"   336,  note. 

"      "       "     ''  "  "   as  to  power  of  Congress  to  dis- 
pose of  the  public  property  . .  4,  400-401 
"      "       *'     4,  as  authorizing  President  to  employ 

army .,. 111-112 


INDEX.  513 

CONSTITUTIOIV— Continued. 

Page. 

Amendment  Y,  as  to   ''cases  arising    in    the    land 

forces" 49,  213,  note. 

"  "    as  to  the  authority  to  award  "just 

compensation  " 1G8 

"  YI,  as  to  right  of  trial  by  jury 211 

"            YlII  as  to  prohibition  of  "  cruel  and  un- 
usual i^unishments." 448 

Amendments  Y,  YII,  and  YIII,  as  to  their  general  ap- 
plication   448,  note,  484 

Constitutionality  of  last  clause  of  Art.  GO 37 

"  "  Sec.  1222,  E.  S 157 

"  "     "    1230  242,  note. 

"  "     "     1325  138 

"  "     "     1361  212-213 

"  "     "     4824  ...214, 216,  (notes.) 

"  "     "     4835  214, 216,  (notes.) 

As  to  authority  of  military  court  or  officer  to  treat  a 

statute  as  unconstitutional 214,  note. 

British  and  American  Constitutions  distinguished.. 490,  note. 

CONSTRUCTIVE  PABOON. 

See  Pardon 358-359 

COl^TEMPT. 
Authority  of  court  martial  to  punish  as  for.    (Art.  86.) . .         69 
"  "  court  of  inquiry  to  punish  as  for.     (Art. 

115.) 98 

As  committed  by  witness 491 

CONTINUANCE. 

Authority  for  granting.     (Art.  93.) 76 

On  account  of  testimony  of  unexpected  witness 155 

CONTINUING  OFFENCE. 
How  far  desertion  is  such .  „ . 85 

CONTINUING  PUNISHMENT. 

Instance  of,  in  case  of  disqualification 245 

"        "    "     "     "lossoffiles 311,312 

Imprisonment,  when  operates  as 289 

Discontinued  by  pardon 358 

33  d 


514  INDEX. 

CONTKACT. 

Page. 

Must  be  express  and  in  writing 179-180 

Mere  vouchers  do  not  constitute 181 

Advertising  for  according  to  Sec.  3709,  E.  S 181 

Purpose  of  advertisement 182 

Effect  of  same  as  pledge  to  the  public 182 

Eeservation  as  to  rejection  of  bids „ 182 

Fraud  as  avoiding  bids . .       183 

Proceeding  where  lowest  bid  unreasonably  high 183 

Withdrawal  of  bid  before  acceptance 183 

Effect  of  acceptance  of  bid 183 

Contract  not  to  depart  from  advertisement 183-184 

Effect  of  withdrawal  of  bid  after  acceptance 184 

"Public  exigency,"  (dispensing  with  advertisement,) 

defined 185-187 

Contracts  for  "  personal  services  "  what 187 

"         in  absence  or  advance  of  appropriation 187-189 

"         and  leases  to  run  generally  with  fiscal  year .  187-188 

*^         in  excess  of  appropriation 187-189 

Exception  as  to  contract  for  army  and  navy  supplies  .       189 

Contract  under  "  permanent"  appropriation  189 

"       with  Member  of  Congress,  &c 189-190 

"       with  public  employee 179, 190 

Assignment  of  contract,  effect  of  in  general 190-191 

"  ''        ''         authority  to  ratify 190,  note. 

"  "        "         by  power  of  attorney 191, 388 

Authority  to  extend  contract , 191-192 

"  ''  modify  contract 192-193 

"  "  release  contractor  from    performance.  194-195 

"  "        "  "  "       pecuniary   lia- 

bility.  1 93-194, 195 
"  "  relieve  contractor  from  loss  or  damage..       195 

"  "  reopen  contract  after  settlement 196 

Liability  of  U.  S.  where  performance  prevented  by  its 

act 196 

Authority  to  make  offsets  in   settlement  with   con- 
tractor     196,197 

"  "   have  work  done  by  day  labor  instead  of 

contract 197 

Interest  not  generally  payable  on  contract 166 


INDEX.  515 

CONTKACTTOR. 

Page. 

Liabilities  and  rights  under  his  contract 183-197 

Payment  of,  cannot  be  enjoined  by  State  court 1G3 

CONTRACT  SURGEOIV. 

See  ''Acting  Assistant"   or  "Contract"  Sur- 
geon        102 

COIVVENING  OFFICER. 

As  to  authority  of  to  determine  number  of  members 

for  court.  (Art. 75.)..        60 
"     ''  "         "    "  "  rank    of     members. 

(Art.  79.) 60 

''     ''  ''  "    "  act  upon  proceedings 89-91,435 

"     "   control  of,  over,  and  relations  with,  the  court. 

200-202,  205 
CONVENING  ORI>ER. 
See  Order,  II 353-354 

COPY  OF  CKAR^^E. 

Service  of  upon  accused  officer 52-53 

OoiFy  served  need  not  contain  list  of  witnesses .52, 155 

COPY  OF  RECORI>. 

Eight  of  accused  to.   (Art.  114.) 95-96 

Admissibility  of  in  evidence 99-100,  255-256 

CORPORAL  PUNISHITIENT. 
Disuse  of  in  practice  .* 449 

"CORPS." 

Meaning  of  in  Art.  81,  illustrated 63 

In  term  ''  different  corps,"  in  Art.  82 64-65 

CORRECTION  OF  RECORD. 

See  Record 419 

Reviewing  Authority 437 

Revision 440-442 

CORRESPONDENCE  WITH  ENEMY. 

How  the  offence  may  be  constituted.    (Art.  46.) 21 

Suspension  of  writ  of  habeas  corpus  in  case  of  offender.       279 


0l6  INDEX. 

COUNCIL.  OF  WAR. 

Page. 

See  Military  Commission,  I 325,  note 

COUNSEIi.    (In  civil  proceeding's.) 
Authority  to  emx)loy 198 

How  procured  under  existing  law 198, 396-397 

COUJVSEI..    (For  accused,  &c.) 

Continuance  to  i^rocure 77 

Privilege  of  in  general 199 

Eestriction  or  denial  of  privilege  of 199 

Employment  of  officer  as 199 

Interviews  of  accused  with 120, 199 

Interviews  of  counsel  with  witnesses 199 

Authority  of  court  to  assign  counsel ; 200 

Or  to  excuse  member  to  act  as 200 

Judge  advocate  as  counsel 299 

Admission  in  court  of  counsel  of  prosecutor 400 


COURT  MARTIAI..  (AntSaority,  function,  &c.) 

As  to  authority  to  entertain  complaints.     (Art.  30.)  . .  15-16 
''     '^           ''        ''  punish  for  contempt.    (Art.  86.)  . . .   69-70 
"     "           "        ^'  decide  on  challenges.     (Art.  88.). ..  7^-73 
"     "           "        '^  grant  continuances.     (Art.  93.) ....   76-77 
^ot  authorized  to  direct  as  to  execution  of  death  sen- 
tence.    (Art.  96) 79 

^'    a  part  of  the  U.  S.  judiciary  5 200 

But  of  the  executive  department  of  the  Government.       200 

]S"ot  appealable  from  to  U.  S.  courts 200 

To  be  allowed  to  regulate  its  own  i)rocedure 200-201 

^ot  properly  ordered  to  take  particular  testimony  j . . .       201 

Or  to  impose  particular  i)unishments  201 

Not  to  trench  on  authority  of  reviewing  officer 201 

Authority  over  person  of  accused 201 

Cannot  arrest  accused  or  a  witness 201-202 

Charges  how  referred  to  . . .   154, 202 

Authority  as  to  amending  or  striking  out  charges. .  .155,  202 

As  to  initiating  testimony 202-203 

"    "  excluding  testimony  in  the  interests  of  justice. .       203 
"    "  taking  testimony  after  plea  ot  guilty  ....  203, 375-377 
''    "      ''              "          where  plea  and  statement  in- 
consistent    377-378 


INDEX.  517 

COURT  inARTIAL,— Continued. 

Page. 

As  to  admitting  testimony  after  case  closed 203 

'^    ^'  taking-  up  a  new  case  pending  a  trial 203-204 

^ot  attended  in  practice  by  a  provost  marshal 202,  note. 

Cannot  dissolve  itself 103, 204 

ElSect  of  order  dissolving  same 204 

Cannot  excuse  a  member  except  on  challenge 73,  204 

"       relieve  its  judge  advocate; 204 

Or  authorize  a  member  to  act  as  judge  advocate 204,  297 

Communications  between  court  and  convening  officer.       205 

May  sit  on  Sunday 205 

Cannot  be  polled 205 

May  be  closed  but  is  generally  open 205 

May  exclude  disorderly  persons  from  court  room 205 

Authority  to  sentence  after  escape  of  accused 205 

"  "  make  comments  and  recommendations  in 

connection  with  sentence 205-206 

Kot  qualified  to  i>ronounce  Act  of  Congress  unconsti- 
tutional   214,  note. 

May  permit  accused  to  modify  or  withdraw  i»lea 37S-379 

Controls  and  is  responsible  for  its  record 300,  421 

How  to  correct  its  record  on  revision 419,  440-441 

Not  authorized  to  appoint  reporter 427 

Discretion  of  as  to  choice  of  sentence 448 

Not  authorized  to  issue  attachment  for  witness . . -       4S9 

COURT  :nARTIAI..    (Jurisdiction  of.) 

Of  inferior  courts  under  Art.  17 6 

Over  civilians  in  time  of  war.     (Arts.  45  and  46.) 20 

"     deserters  after  expiration  of  term  of  enlistment. 

(Art.  48.) 23 

"     crimes  in  time  of  war.     (Art.  58.) 27-28 

Of  officers  and  soldiers  after  discharge,  &:c.,  under  Art. 

60  37 

"  inferior  courts  generally.     (Art.  83.) 65-67 

Over  cadets  for  ^iolation  of  regulations  of  Academy. .       138 

Its  jurisdiction,  in  general,  special  and  limited; 205-206 

And  criminal — does  not  extend  to  personal  wrongs  . . .       207 

Coextensive  with  limits  of  U.  S 207 

As  to  offences  committed  outside  limits  of  U.  S 207-208 

That  arrest  is  outside  does  not  affect  jurisdiction 208 


518  INDEX. 

C®UKT  MAKTlAIi— Cotitinued. 

Page. 

To  be  amenable  to,  the  party  must  be  in  the  army ....       208 
Offences  committed  before  or  m  enlisting  not  cogniza- 
ble  ...46,208 

When  jurisdiction  over  military  person  ends 208-209 

Authority  of  Sackville's  case  . 209 

Effect  of  discovery  of  offence  after  offender  has  left 

army , 209,294 

Effect  of  return  under  a  new  commission „ 209 

Discharge  of  soldier  as  terminating  jurisdiction 209 

Jurisdiction  after  expiration  of  service,  where  proceed- 
ings commenced  before 210-211 

Euling  in  Walker's  -case 210 

Jurisdiction  over  civilians  in  time  of  peace 211 

"  under  Sec.  1361,E.  S 212-214 

Wildman's  case  . » 212,  note. 

Arrest  not  required  to  give  jurisdiction 119, 214 

Voluntary  appearance  sufficient 119, 214 

Effect  of  the  resigning  or  discharge  of  the  subject  of 

an  offence , 215 

Double  amenability  to  civil  and  military  jurisdiction 

84, 214-215 
Amenability  for  offences  committed  on  leave  of  ab- 
sence  : 10, 31,  note,  215-216 

Peculiar  case  at  National  Home 216 

Jurisdiction,  as  affected  by  terms  of  convening  order. 353-354 

^^  over  i^ost  traders 354 

"  over  retired  officers 433 

"  over  officers  under  suspension 468 

COUKT  OF  IIV<|UIMT. 

Proceedings  not  affected  by  limitation  of  Art.  103 88 

Copy  of  record  of,  how  obtainable 96 

Is  not  properly  a  court 96,  note. 

Does  not  try  or  sentence 96,  note. 

Can  be  ordered  only  in  cases  of  what  persons 96-97 

Distinguished  from  a  grand  jury 97 

Eight  of  subject  of  inquiry  to  appear  and  examine 

witnesses 97 

Sessions  of  may  be  open  or  closed  at  discretion 97 

Authority  of  to  entertain  challenges 9/ 


INDEX.  519 

COURT  OF  IJVQUIRY— Coiitmwed. 

Page. 

Authority  of  to  piinisb  for  contempt 98 

Nature  of  its  opinion 98 

Members  of  may  give  dissenting  opinions 98-99 

May  comment,  &c.,  in  connection  with  opinion 99 

Admissibility  of  its  record  before  a  subsequent  court 

martial 99-100 

Authority  for  appointment  of  reporter  for 427 

Wife  of  party  admissible  as  witness  before 482 

Attachment  of  witness  not  authorized  for 489 

COl^VARDICE. 

As  a  form  of  misbehavior  before  the  enemy 19 

Significance  of  term  in  Art.  100 82 

CREDIT.     (For   g:ood  conduct  in   confine- 
ment.) 

See  IMPRISONBIENT . , 289-290 

"CRIME." 

Meaning  of  in  Art.  02 42 

"         ""     '^     65  50 

CRUEE  ANB  UNUSUAE  PU]\ISHME]¥T. 

See  Sentence  and  Punishivient 448-449 

"  CUMUEATIVE  "  EEAVE  OF  ABSENCE. 

Right  to  allowan(je  for  quarters,  of  ofticer  on 309 

Effect  on  right  to,  of  absence  under  suspension 310 

CUMUEATIVE  PUIVISHMEl^T. 
"When  separate  terms  of  imi)risonment  are  cumulative .  288-289 
^'      sentences  are  cumulative  in  general 449-450 

CUSTOM  OR  USAGE  OF  THE  SERVICE. 

Punishments  as  recognized  by 66,  448 

Swearing  of  witness  as  sanctioned  by 75 

As  sanctioning  remission  of  sentences 93 

"            "            challenges  to  members  of  court  of  in- 
quiry . . .   . , 97 

"   affecting  status  of  person  put  on  duty  when  under 

arrest ....    101 


520  INDEX. 

CUSTOM  OR  USAGE  OF  THE  SERVCE— Con- 
tinued. 

Page. 

As  not  sanctioning  employment  of  member  of  court  as 

clerk 172 

"     ^'  "  interference    with    procedure    of 

court 200-201 

"  to  devolution  of  command  in  the  army 229 

'^    "  liabilities  and  remedies  of  disbursing  officer . .  229-230 
^^    "•  the  mm^m^«^^  quorum  for  military  commission..       327 
a    u     a   procedure  in  other  respects  of  military  com- 
mission         327 

u    u     u   reserving  of  land  for  military  purposes ..  336,  note. 


D. 


DATE  OF  APPOINTMENT. 

As  fixing  rank 106 

Authority  for  correction  of 109-110 

"©AT." 

Meaning  of  in  Act  providing  for  extra  duty  pay 260 

u        u    u  sentence  of  court  martial 450 

DEATH  SENTENCE. 

Eequirement  in  regard  to  of  Art.  96 78-79 

Form  of— what  it  need  not  state 79 

Execution  of 79 

Coleman's  case 79-80,  note. 

Cannot  operate  to  forfeit  pay 270-271 

DEBT. 
As  ground  of  a  military  charge 39-40 

DECEASED  OFFICER  OR  SOIiDIER. 

Disposition  of  effects  of  under  Articles  of  War 100 

Limited  authority  of  military  officials  as  to  proi^erty  of.       100 

DEFECTS  IN  PROCEEDIN<GS,  SENTENCE,  &c. 
In    general,    ground    only    for    revision     or    disap- 
proval  218,  420,  note. 

Rulings  of  civil  courts  on  the  subject 420-421,  note. 

General  presumption  in  favor  of  record 78,  420,  note. 

What  defects  to  be  deemed  absolutely  fatal.  218,  421-422,  note. 
Material  variance  when  a  fatal  defect 477 


INDEX.  521 

DEFENCE.. 

Page. 

To  charge  under  Art.  13 5 

"         "         ^'     38 17 

"         "        "    39 18 

"         ''        "     CO 35,30 

"      of  absence  without  leave 101 

"      "  desertion 224-225 

That  not  i)laced  in  arrest,  not  a 119 

Of  accused,  not  to  be  embarrassed  by  unnecessary 

l)hysical  restraint 218-219 

Mode  of  by  accused,  not  in  general  to  be  interfered 

with 219 

Allowance  of  counsel  for 199,  219 

Eight  of,  authorizes  accused  to  be  present  at  reading 

of  proceedings ; 219,  415 

And  at  all  material  stages  of  trial 219,  415 

Eights  and  privileges,  on  defence,  not  dependent  on 

rank 219 

All  defendants  to  be  equal  before  the  law 219-220 

That  irregularly  enlisted  not  a  defence 250 

DEMURRER. 

Special  plea  in  nature  of 379 

DEPARTMENT   COMMANDER. 

As  to  authority  to  discharge  soldiers.     (Art.  4.) 3 

^<  "  under  Art.  30 15 

^'  ''  "  "     59 29,31 

"  "  "  '^     66 51 

''         "         to  convene  general  courts 53,  54 

"  "         over  proceedings  of  inferior  courts 64 

"  "         to  act  upon  proceedings  of   general 

courts 89,  90,  91 

"   "  "         of  pardon  and  mitigation 93 

Effect  of  absence  of  from  command 54,  89-90 

Assignment  of  colonel  as,  according  to  brevet  rank.  .53-54, 134 

Authority  of  as  to  emi)loyment  of  counsel 198 

"  "    "    ''  denying  application  for  counsel..       199 

Dismissal  of  officer  by,  effect  of 204 

Action  of,  on  sentence  of  loss  of  files , 311 

Eeference  of  cases  to  court  by 154-155,  202,  382 

Cannot  add  to  punishment  437,  451 

"       impose  punishment  by  order  without  trial.. 451-452 


522  •  INDEX. 

DEPOSITION. 

Page. 

When  admissible  in  evidence.     (Art.  91.) .    73-75 

Eesort  to,  in  cases  of  particular  classes  of  witnesses . .  74,  484 

©ESERTION. 

Liability  of  deserter  to  make  good  time  lost.     (Art.  48.) .  21-23 

"        '''-         "      "  trial  after  expiration  of  term 23 

Enlisting  without  discharge  as  evidence  of  desertion. 

(Art.  50.) 23-24 

Offences  of  advising  and  persuading  to  desert.     (Art. 

51.) 24 

Confinement  in  i^enitentiary  not  imiDosable  for  deser- 
tion.   (Art.  97.) 80 

Limitation  of  prosecution  for  desertion.     (Art.  103.)..  85-86 
Effect  of  desertion  on  right  to  receive  artificial  limb ....       122 

''     "  ''        ^'      "      "        "     bounty 132,133 

Desertion  not  chargeable  as  a  joint  offence 153 

The  offence  defined  and  illustrated 220-222 

What  necessary  to  proof  of 222 

Mere  charging  of,  not  proof  of ...       222 

Escape,  as  evidence  of  intent  to  desert 223-224 

Fact  that  accused  enlisted  when  a  deserter  no  defence 

to  charge  of  subsequent  desertion 224 

111  treatment  in  the  service  not  a  defence  j 224 

]S"or  nostralgia  of  enlisted  foreigner 224 

"    his  obligation  to  render  military  service  to  foreign 

government 224 

Defence  that  restored  to  duty  under  ^av.  159,  A.  R.. 224-225 

Forfeiture  of  citizensbip  incident  to  conviction 225 

"  "     P^y?  &c.,  by  operation  of  law 225-226 

Deserter  not  liable  to  other  forfeiture  226 

Or  to  dispossession  of  personal  funds  or  effects 226 

Desertion  does  not  disqualify  to  receive  honorable  dis- 
charge ; 226 

Or  pay  or  bounty  incideut  thereon 226 

Reward,  when  payable  for  arrest  of  deserter 226 

Offer  of  reward  does  not  justify  illegal  arrest 226 

Reward  not  payable  when  no  arrest  made 227 

Liability  to  pay  reward  need  not  be  imposed  in  sen- 
tence        227 


INDEX.  •  523 

DESERTION— Continued. 

Page. 

Stoppage  of  amount  of  reward  not  incurred  when  con- 
viction disapproved  ; 227 

Or  on  conviction  of  absence  without  leave 227-228 

Offence  of  aiding  and  abetting  desertion 228 

Acquittal  of  desertion  acquits  of  the  absence  without 

leave  228 

Conviction  of  the  absence  merely,  acquits  of  the  deser- 
tion          228 

Enlistment  of  deserter  voidable,  not  void  2,  249-250 

Discharge  of  minor  under  sentence  as  deserter 251 

Credibility  of  deserter  as  witness  257-258 

Finding  of  absence  without  leave  under  charge  of  de- 
sertion  264 

Pardon  of  deserters  at  large 3G0,  361 

*'        "  "         during  late  war 361 

Evidence  in  cases  of  deserters  pleading  guilty   376-377 

"         "      "      "          ^'          where  plea  and  state- 
ment inconsistent. ..       378 
Desertion  to  enemy  by  prisoner  of  war , 395 

DETACMED  SERVICE. 

Effect  of  on  liability  to  charge  under  Art.  20 8 

DEVOEUTION  OF  COI^IMAND. 

On  next  senior,  in  absence  of  division  or  dept.  com- 
mander   229 

"DIFFEREIVT  CORPS." 

Meaning  of  term  in  Art.  82 65 

DIPIiOMATIC  OR  CONSULAR  OFFICE. 

Eflect  of  holding  or  accepting  by  officer  of  army 159-160 

DISABILITY. 

As  incident  to  desertion 225 

"    removable  by  pardon  in  case  of  desertion 225 

"    incident  upon  dishonorable  discharge 235 

"  "  "      dismissal  of  officer 238-239,  241 

Effect  of  pardon  in  removing  generally 356 

Cannot   attach  where  conviction  or  sentence  disap- 
proved   436 

"  Eemoval "  of,  in  case  of  volunteer  officer . .  426 


524  •  INDEX. 

DISAPPROVAL.  OF  PKOCEEDINOS. 

Page. 

As  not  affecting  operation  of  Art.  102 84 

A  necessary  preliminary  to  granting  a  new  trial 344-345 

Eff'ect  of  as  terminating  and  nullifying  proceedings.  .435-436 

u      u   u  precluding  execution  of  sentence 435-436 

^<-      'i   "  ''  the  attacliing  of  forfeiture,  &c.       436 

"      equally  final  whatever  the  ground  for  the  action .       436 

Ground  of  need  not  be  specified 436 

DISBURSING  OFFICER. 

Embezzlements,  &c.,  by,  chargeable  under  Art.  60  . . .  33-36 

Liability  of  for  paying  out  money  on  false  vouchers 229 

"  "  not  avoided  by  having  acted  in  good  faith.       229 

How  to  seek  indemnity  for  or  relief  from  losses  = 229-230 

Duty  as  to  prosecuting  remedies  when  made  liable  for 

public  funds; 229,230 

As  where  depositary  (bank)  has  failed 230 

Disbursement  of  fund  for  new  State,  &c.,  building 230 

Gambling  by,  a  military  offence 276 

Eesponsibility  for  transportation  of  public  funds 475 

DISCHARGE. 

Right  of  soldiers  to,  at  end  of  term 2 

When  a  discharge  takes  effect 3 

Certificate  of  as  evidence  of  fact  of  discharge 3 

Discharge  as  relieving  deserter  from  liabilities  under 

Art.  48 23 

Effect  of  re-enlisting  without  discharge.     (Art.  50) . . .  23-24 

Three  kinds  of  discharge  in  our  law 231 

Discharge  by  sentence  and  by  order  distinguished. 3, 231-232 
Statement  in  certificate  of  cause  of  discharge  by  order. 

3,  note,  231 

"  of  "  character  "  at  foot  of  discharge 231-232 

Discharge  as  terminating  amenability  to  military  juris- 
diction  209,  234 

Soldier  not  subject  to  be  x>wnished  after  discharge. 234,  note. 
Honorable  discharge  final  and  conclusive  in  absence  of 

fraud 232-233 

Revocable  if  obtained  by  fraud 232-233 

Effect  of,  pending  a  term  of  imprisonment 234 

Entitles  to  bounty  notwithstanding  desertion  . .  .132, 133, 233 


INDEX.  525 

DISCKARGE— Continued. 

Page. 

Not  essential  to  entitle  to  receive  artificial  limb 122 

"  "  "       "        "pension 373-374 

Discharge  from  enlistment  on   account  of  minority , . 

250-251, 280 
Dishonorable  discharge — execution  of  when  imposed  with 

imprisonment 234 

Postponement  of,  when  unauthorized 234-235 

Court  not  to  leave  date  of  to  reviewing  officer 235 

Deferring  of,  cannot  be  made  to  extend  term  of  enlist- 
ment         235 

Involves  no  disability  to  enlist  or  hold  office 235 

When  executed,  cannot  be  commuted  or  changed  to 

honorable  discharge 235 

Effect  of  an  executed  discharge 235-236 


DISHONORABI.E:  DISCHARGE. 

See  Discharge 234-236 

DISMISSAL.    (By  sentence.) 

By  what  Articles  authorized  or  required 236,  447 

Effect  where  Article  makes  mandatory 18, 41, 51 

Equivalent  to  cashiering 141,  236 

When  and  how  takes  effect 236-237 

Cannot  retroact,  to  divest  right  to  pay,  &c 237 

Power  of  reviewing  officer  exhausted  on  confirmation 

of 237-238 

After  executed  cannot  be  revoked  or  modified  j 237-238 

Or  reached  by  pardoning  power 237 

Officer  can  be  reinstated  only  by  a  new  appointment. .       238 

Effect  of  in  making  the  officer  a  civilian 238 

Withdraws  him  from  jurisdiction  of  court  martial  . .  .208-209 

Entails  no  disability  to  re-enter  public  service 238-239 

Effect  of  in  case  of  prisoner  of  war 236,  394 

Ee vocation  of  in  case  of  naval  officer 239 

Restoration  of  officer  dismissed  by  sentence. 390-391, 461-464 
Dismissal  as  involved  in  sentence  of  reduction .       423 

DISMISSAL..    (By  Order.) 

Distinguished  from  dismissal  by  sentence 239 

Authority  and  precedents  for \  ..: 239 


526  INDEX. 

DISMISSAL.— CoBatiBiiied. 

Page. 

Authorized  though  officer  acquitted  by  court  martial .       240 

Cannot  divest  rights  to  pay 240 

Effect  of  a  dismissal '  '•  by  order  of  the  Secretary  of  War  " .       240 

Dismissal  by  a  military  commander  inoperative 240 

Unless  ratified  by  the  President 240 

When  and  how  this  dismissal  takes  effect 240 

Effect  of  change  of  rank  before  notice  of 241 

No  disability  attached  to 241 

Kot  capable  of  revocation 241 

Effect  of  in  making  the  officer  a  civilian 241 

Officer  restorable  only  by  re-appointment 241 

Dropping  for  desertion  distinguished  from 243 

Effect  of  when  officer  is  member  of  court-martial 321 

"       "     "  "■       ^'-  prisoner  of  war 394 

Eein statement  of  dismissed  officer 241, 390-391 

Trial  of  officer  dismissed  by  order 242-244 

Constitutionality  of  Sec.  1230,  E.  S 242,  note. 

This  Section  not  retroactive - 242 

Application  for  trial,  when  to  be  made 242 

Form  of  application 242-243 

Effect  of  acquittal  where  regiment  mustered  out ......       243 

"      where  vacancy  filled 243 

Statute  not  operative  in  time  of  peace 243 

Does  not  apply  to  officers  dropped  under  Sec.  1229,  E.  S .  243 
"  Wholly"  retiring  as  distinguished  from  dismissal ....       432 

i>isori>£:r. 

[N'ot  chargeable  as  mutiny 11 

As  a  military  offence 44-46 

DISQUAL.IFICATIOJV. 

As  incidental  to  cashiering 141, 244,  note. 

Punishment  of,  as  authorized  by  the  code 244 

"  ''    "  sanctioned  by  precedent 244 

The  two  forms  of 245 

A  continuing  i)unishment 245 

May  be  discontinued  by  pardon 245, 358 

Subject  to  serious  legal  objection  . . , 245-246 

Opinion  of  Attorney  General 245,  note. 

Disuse  of  in  1870 245,  note. 


INDEX.  527 

DISKESPECT. 

Page. 

To  President,  &c.     (Art.  19.) 7 

'^  Commauding  officer.     (Art.  20.) 8 

DISSENTINO  OPINION. 

By  members  of  court  of  inquiry 98-99 

"  "         '^  board  of  investigation 124-125 

DISSOEUTION  OF  COURT. 

Court  cannot  dissolve  itself 103 

Effect  of  order  dissolving  court 204 

"       "      "     revoking  same ....i, 204 

DISTRICT  COMMAND. 

As  forming  a  separate  brigade.     (Art.  73.) 5G,  57 

DISTRICT  OF  COI.UMBIA. 

Martial  law  in 317-318 

Authority  of  Commissioners  of  over  Washington  Arse- 
nal        339 

DIVISION. 

Meaning  of  in  Art.  73 55 

Merger  of  division  command 90 

DOUBEE  AMENABIEITY. 

Of  officer  or  soldier  to  military  and  ci^^l  jurisdiction  for 
same  act 84, 214-215 

DOUBEE  PEEADINO. 

See  Charge 150 

DROPPINO  FOR  DESERTION. 

Under  Sec.  1229,  R.  S.,  distinguished  from  dismissal. .       243 
Officer  dropped  not  entitled  to  trial  under  Sec.  1230  . .       243 

DRUNKENNESS. 

Meaning  cf  " intoxicated"  in  Art.  3 2 

On  duty—offence  of 16-18 

As  an  offence  under  Art.  61 39 

"     ^^         "          ''      Art.  62 , 18,44 

No  excuse  for  crime,  where  voluntary 246 


528  INDEX. 

DRUNKENNESS— Coiatiniaed. 

Page. 

As  evidence  of  criminal  intent 246 

"         ^'  "   species  or  grade  of  offence 246 

Involuntary  drunkenness,  effect  of 247 

Eorm  of  charge  as  affected  by  fact  of  drunkenness 247 

Liability  of  superior  permitting  intoxication  of  inferior .  247 
Statement  as  to  drunkenness  of  accused,  admissibility 

of  in  evidence 255 

Drunkenness  as  ground  of  retirement 432 

DRUNKENNESS  ON  DUTY. 
See  Thirty  Eighth  Article , « - 16-18 

DUEI.EINO. 

Il^ot  a  specific  military  offence 14 

DUPL.ICATINO  PAY  ACCOUNT. 

As  an  offence  under  Art.  60 33 


E. 


EIOMTIl  ARTICEE.    (False  returns.) 

Refers  only  to  returns  by  certain  co^nmanders 4 

Construction  of  term  "  knowingly  '^ 4 

What  kinds  of  returns  included 4 

EIGHTIETH    ARTICl-E,      (Field    oflicer's 

COME't.) 

This  court  authorized  only  in  war 61 

A  substitute  in  war  for  regimental,  &c.,  courts 61 

Who  may  detail .' 61-62 

'^      "     bedetailed 62 

Recourse  where  no  proper  field  officer  available 62 

Jurisdiction  of 62,  65 

[Not  required  to  be  sworn 62 

Whole  duty  performed  by  the  field  officer 62 

IsTo  judge  advocate  emi)loyed 62 

Record  of  i^roceedings 62-63 

No  challenge  allowable  .   63,  70 

Power  of  punishment 65 


INDEX.  529 

EIGHTY      EIGHTH      ARTICEE.        (Clial- 
leng^es  to  members.) 

Page. 

Field  officers'  courts  alone  exempt  from  challenge 70 

Objection  that  member  has  preferred  or  is  iirosecutiug 

the  charges 70-71 

"           "    he  is  a  material  witness 70 

"           "    he  is  commanding  officer  of  accused ...  71 

"           ^^    he  has  expressed  or  formed  an  opinion.  71 

"            "    he  is  personally  prejudiced 71 

"           "    he  is  a  junior  in  rank 71 

^'            ^'     he  is  next  in  line  of  promotion 71 

"           "    he  will  gain  a  file  if  accused  dismissed .  71 
"           "     he  was  a  member  of  a  previous  court  in 

same  or  similar  case 71,  72 

"           "    he  took  part  in  previous  investigation .  72 

Procedure  on  challenge  of  member 72 

Courts  to  be  liberal  in  passing  on  challenges 72 

But  same  not  to  be  allowed  without  i)roof 72 

Effect  of  disclaimer  of  prejudice,  &c.,  by  member 71,  72 

Effect  of  imi:)roper  disallowance  of  challenge 72-73 

All  the  members  subject  to  challenge,  separately 73 

Court  cannot  excuse  a  member  in  absence  of  challenge .  73 

EIGHTY   FIRST   ARTICEE.    (Regrimental 
or  corps  coairt.) 

Certain  chiefs  of   staff  authorized  to  convene  courts 

under 63 

Form  of  convening  order 03-64 

Authority   of  dejiartment  commander  over  i)roceed- 

ings 64 

EIGHTY    FOURTH    ARTICEE.     (Oath  of 
court.) 

Oath  an  essential  preliminary  to  trial 67 

Swearing  must  precede  arraignment 67 

Members  to  be  sworn  severally 67 

"        subsequently  added  to  be  severally  sworn . .  68 

"        may  be  affirmed 68 

Violation  of  oath,  by  entertaining  new  charge  after 

sworn 68 

"         '^       "       "   judging  according  to  personal 

information 68 

34  D  . 


530  INDEX. 

EIGHTY  FOURTH  ARTICI^E-Contimied. 

Page 

Yiolation  of  oath,  by  judging  according  to  private 

views  of  justice 68 

"         "       "       "    stating  or  indicating  vote   in 

record 68 

"          "       "       "    allowing  clerk  to   record  sen- 
tence.     68-69 

Meaning  of  term  ^'  court  of  justice  " 69 

Instance  of  members  compelled  to  disclose  votes.  ..69,  note. 
Same  oath  now  required  of  inferior  courts 67 

EIGHTY   SECOND    ARTICEE.     (Oarrison, 
&c.,  court.) 

Officer  convening  need  not  be  a  field  officer 64 

'^             "          cannot  detail  himself 64 

Acting  assistant  surgeon  not  detailable  on 64 

Meaning  of  term  ''  other  place  " 64 

u        u     u      indifferent  corps" 64-65 

When  member  of  court  may  become  reviewing  officer .         65 

• 

EIGHTY  SIXTH  ARTICEE.    (Contempts.) 

What  acts  punishable  under  by  court 69 

No  power  to  punish  its  own  members 69,  note. 

Failure  by  witness  to  obey  summons,  not  punishable . .  69 

"        "        "        ''  testify,                "            '^          ..  69 

Usual  summary  procedure o 69-70 

Customary  punishments 70 

Amenability  of  offender  to  regular  trial 70 

EIGHTY  THIRH  ARTICEE.    (Authority  of 
inferior  courts.) 

Jurisdiction  and  power  of  all  such  courts  identical 65 

Capital  offences,  however  slight,  not  cognizable  by 65 

Instances  of  sentences  in  excess  of  authority  of QQ 

Limit  of  j)ower  of  punishment,  extent  of (SQ 

Eeduction  to  ranks  imposable  by Q(y 

]S^ot  to  be  resorted  to  for  trial  of  aggravated  offences .  66-67 
But  cannot  refuse  to  try  because  cannot  adequately 

punish 67 


INDEX.  531 

EMBEZZrEHEIVT. 

Page. 

As  an  offence  under  Art.  60 33-36 

a    a         u  u         u      02 43 

EMINENT  DOMAIN— RIGHT  OF. 

As  to  taking  land  by,  for  national  cemetery 343 

"   ^'  acquiring  land  by,  generally 406 

Authority  of  Congress  necessary  to  exercise  of 406 

ENEMY. 

Application  of  term  in  late  war 20 

To  an  Indian  war 330 

ENGINEER  CORPS. 

Authority  of  Chief  to  convene  court  martial 63 

Employment  of  officers  of  on  civil  work,  as  distinguished 

from  civil  office 158 

'^  ''        ^'      "   "  improvements  of  rivers  and 

harbors 290-201 

Authority  of  in  removal  of  wrecks  290, 291 

Payment  of  allowances  of 370 

ENLISTMENT. 

Oath  of,  as  prescribed  by  Art.  2 1 

Prohibition  of  in  Art.  3,  effect  of 2 

Discharge  from  under  Art.  4 2-3, 231 

Ee  enlistment  without  i)revious  discharge.    (Art.  50.) . .  23-24 

Offences  preliminary  to,  or  in,  enlisting 46 

Must  be  comi)lete  to  bring  soldier  within  military  juris- 
diction        208 

What  constitutes  evidence  of  contract  of 248-249 

Effect  of  non-comi)liance  with  army    regulations    in 

making 249 

^'        ^'     "  "  "      Sees.  1116-1118,  E.S.  249-250 

"        "   enlistment  by  a  deserter 250 

"        "  '^  ""        ''      from  the  navy 250 

Discharge  from  enlistment  of  minor 250 

Minor  cannot  discharge  himself 2, 251 

"      not  properly  discharged  when  held  as  deserter.       251 

Enhstment  for  less  than  five  years  illegal 251 

"  on  Sunday  not  illegal 251 


532  INDEX. 

ENL.ISTMENT— CoMtmued. 

Paga 

Autliority  of  Executive  to  modify  contract  pending 

enlistment ...       251 

*^         "    Congress  to  reduce  pay  pending  enlist- 
ment  251-252 

Enlistment  for  ''three  years  or  during  the  war,"  liow 

construed  . . 252 

"  for  the  "  General  Service  " 252-253 

Authority  to  stop  pay  for  liability  under  previous  en- 
listment  ,       363 

ENL.ISTMENT  PAPER. 

Statement  of  oath  in 1 

Now  the  usual  evidence  of  enlistment 249 

ERROR. 

See  Defects  in  Proceedings,  &c 218 

ESCAPE. 

As  an  offence  under  Art.  60 , ......  44, 224 

Authority  to  use  force  to  prevent 51, 121, 452,  note. 

u         u     u    irons  in  orderto  prevent 121, 219, 286 

Of  accused,  effect  of  on  authority  of  court  to  sentence.      205 

As  evidence  of  intent  to  desert 223, 224 

Authority  to  recommit  prisoner  after 287-288 

EVIDENCE. 

Depositions,  when  admissible  in.     (Art.  91.) 73-75 

Matter  of,  not  to  be  stated  in  charge 152-153 

Initiation  of  by  the  court 202-203 

Authority  of  court  to  exclude,  though  not  objected  to.       203 
Introduction  of,  notwithstanding  plea  of  guilty .  .203,  375-377 

"  "   after  case  closed 203 

Drunkenness  as  evidence  on  question  of  intent 246 

Application  to  military  cases  of  rules  of  criminal  evi- 
dence . . 253 

Eules  to  be  applied  irrespective  of  rank  of  accused . .      254 
Interrogation  of  witnesses  as  to  exi^ressions  of  hostility 

to  accused 254 

"  "  "         ''  'f  having    made    other 

statements 254 


INDEX.  533 

EVIDENCE— Continued. 

Page. 

Estimate  of  the  weight  of  evidence 254 

Evidence  to  be  considered,  if  pertinent 254 

"        of  good  clmracter 254 

Examination  of  witnesses  not  to  be  leading 255 

Form  of  interrogation  as  to  drunkenness  of  accused . .       255 

Record  of  previous  trial,  &c.,  when  admissible 255-256 

Ux  parte  affidavits  not  evidence 256 

Muster  rolls  as  evidence 256 

Official  records  of  officer  of  Signal  Corps,  do 256,  note. 

General  and  Special  Orders,  do , . . .  256-257 

Telegraphic  dispatches,  do 257 

Testimony  given  by  a  public  enemy 257 

'•  "       ^'   an  accomplice 257 

"  '«       "    a  deserter 257-258 

Admission  in  evidence  of  confessions 258 

Testimony  of  the  accused,  when  admissible 258,  482 

To  be  received  subject  to  the  usual  tests 2oS,  482 

Extenuating  circumstances  in  evidence 258-259 

Official  papers,  admissibility  of 349-350 

Proof  of  i^erjury  and  false  swearing 375 

!N'o  evidence  admissible  on  revision 441 

*'  Statement"  of  accused,  not  evidence 457 

Majority  vote  necessary  to  sustain  objection  to  evi- 
dence   479 

Criminating  evidence,  privilege  of  witness  as  to 486 

EXCHANGE  AND  TRANSFER. 

Between  captain  of  infantry  and  military  storekeeper.       340 

exchanc;e  of  prisoner  of  war. 

See  Prisoner  of  War 393, 394 

EXCEUSIVE  JURISDICTION. 

See  Cession  of  Jurisdiction 141-144 

EXECUTED  SENTENCE. 

Cannot   be  rescinded   or  modified   by  reviewing  offi- 
cer.  237,  390,  439 

Or  reached  by  the  pardoning  power 93,  357,  390 

EXEMPTION  FROM  ARREST  FOR  DEBT. 

Of  soldier,  under  Sec.  1237,  K.  S 122 


534:  INDEX. 

EXEMPTION  FROM  ATTACHMENT  AND 
EXECUTION. 

Page. 

Of  pay  of  officer  or  soldier 160-161 

"   property  required  for  use  in  the  service 161 

"   baggage  of  officer , 161 

EXIGENCY.    (Piitolic.) 

As  dispensing  with  advertisement  for  proposals  prior 
to  contract 185-187 

EXTENUATING  CIRCUMSTANCES. 

Admissible  in  evidence  in  mitigation  of  punishment, 

&c 18,  35,  36, 247,  258-259, 346, 376, 380 

EXTRA  COMPENSATION. 

See  Compensation  for  extra  services 178-179 

EXTRADITION. 
Under  treaty  with  Mexico,  through  military  commander 
in  Texas 259-260 

EXTRA  DUTY  PAY. 

Meaning  of  word  " day"  in  Act  providing  for , . , 260 

Signal  corps  soldiers,  entitled  to  as  artificers 260 

Packers  entitled  to  as  laborers 260 

Enlisted  men  detailed  as  clerks,  entitled  to  as  laborers  .260-261 
Forfeited  by  sentence  of  forfeiture  of  pay  and  allow- 
ances   271 

EXTRA  PAY. 

Under  act  of  March  3,  1865 261 

Eight  of  certain  volunteer  officers  to 261-262 

^'       "  officer  mustered  out  as  supernumerary 365-366 

Obligation  to  restore  it  on  reappointment 366 


F. 

FAESE  RETURN. 

See  Eighth  Article 3-4 

FAESE  SISVEARING. 

See  Perjury 374-375 


INDEX.  535 

FELiONY. 

Page. 

Military  offences  not  felonies 334 

Consequences  of  felony  not  attaclied  to  military  con- 
viction         334 

FURRY. 

Authority  to  grant  ferry  franchise 403 

FIELD  OFFICER'S  COURT. 

Composition  J  function  of,  &c.     (Art.  80.) 61-G3 

Jurisdiction  of G2,  05 

Not  subject  to  challenge 03,  70 

FIF  TIE  Til  ARTICEE .  (Re -enlistment  with- 
out discbarg^e.) 

Construction  of 23-24 

Does  not  create  a  species  of  desertion 23 

Held  not  to  apply  to  a  case  of  a  marine  j 24 

I^or  to  a  soldier  discharged  in  fact  but  not  formally ...  24 

FIFTY  EIGHTH  ARTICEE.    (Special  juris- 
diction in  time  of  war.) 

Not  oi)erative  in  time  of  peace 27 

The  jurisdiction  conferred  not  exclusive 27 

Form  of  charge  under 27-28 

Operation  of,  when  terminated  in  late  war 28 

Provision  of  as  to  j)unishment 28 

FIFTY  FIFTH  ARTICEE.    (Injury  to  prop- 
erty of  civilians.) 

Purpose  of  Article 20 

Ko  defence  that  person  injured  was  an  enemy 20 

Effect  of  word  "maliciously" 20-27 

FIFTY    FIRST    ARTICEE.      (Advising:    or 
persuading:  to  desert.) 

Advising  and  persuading  to  desert  distinguished 24 

FIFTY  FOURTH   ARTICEE.    (Reparation 
for  injuries  to  civilians.) 

Apparent  contemplation  of 25 

Equitable  application  of 25 

Construction  of  in  G.  O.  35  of  1808 25 

Need  of  amendment  of 25 


536  m-DEx. 

FIFTY  FOURTH  ARTICI^E— Continued. 

Page. 

Nature  of  the  stoppage  provided  for 25 

Proceedings  not  affected  hy  civil  liability  of  party 2Q 

Limits  of  power  of  reparation » 26 

Commanding  officer  not  authorized  to  punish 26 

Damage  not  to  be  assessed  by  a  court  martial 26 

FIFTY  NINTH  ARTICI.E.    (Arrest  by  civil 
autliority.) 

Purpose  of  Article 29 

Arrests  not  according  to  unauthorized 29 

Eelease  of  military  x)erson  not  duly  arrested 29 

Form  of  application  for  surrender  of  accused  .......     29-30 

Application  required,  though  offence  committed  before 

entering  service —  30 

Meaning  of  term  ''■  laws  of  the  land"  30 

Cases  in  which  Article  does  not  ai)i)ly 30-31 

Surrender  where  military  offence  also  involved 31 

Case  of  soldier  released  on  bail 31 

Voluntary  surrender  not  to  be  permitted 31 

Eemanding  of  escaped  prisoner  arrested  under  Article .  31 

FIFTY  SECOND  AND  FIFTY  THIRD  ARTICLES. 
These  Articles,  dead  letters ^ 391,  note. 

FINDING. 

Two-thirds  not  necessary  to,  where  death  sentence  im- 
posed   78-79 

To  be  governed  by  evidence  in  connection  with  plea . .       262 

''  follow  plea,  where  no  evidence 262 

On  charge  and  specification  to  be  consistent 262 

Of  guilty,  when  sufficient  to  support  sentence 262 

Should  be  a  separate,  on  each  charge  and  specification .       262 

To  cover  all  the  charges  and  specifications 262 

"  show  what  found  proved  and  what  not 262 

Exceptions  and  substitutions  in 263 

Care  to  be  taken  not  to  except  gist  of  charge 26-27, 263 

Finding  of  lesser  included  offence  authorized  ; 264 

But  not  of  an  offence  quite  distinct  in  nature 264-265 

Of  *'  conduct  to  the  i)rejudice,"  «&c.,  under  charge  of 

"  conduct  unbecoming,"  &c 265 

Of  same  under  charge  of  specific  offence.    ...       265 


INDEX.  537 
FINDINO— Continued. 

Page. 

This  finding  to  be  resorted  to,  to  prevent  failure  of  jus- 
tice...   2G6 

Not  to  relieve  offender  from  just  punishment 2GG 

Eeverse  of  this  finding  not  allowable 2G5-2GG 

Effect  of  tie  vote  on  a  proposed  finding 2GG 

Court  in  finding  may  consider  manner  and  appearance 

of  witnesses 2GG-2G7 

Statement  of  finding  in  record  417-418 

What  finding  necessary  and  sufficient  to  support  a  sen- 
tence     448 

FINE. 

Extent  of,  by  sentence  of  inferior  court.     (Art.  83.) . . .  6G 

Imi)Osable  only  as  a  punishment  by  court  martial  —  2G7 

Distinguished  from  stoppage 2G7 

Can  accrue  to  United  States  only 2G7 

Not  applicable  to  benefit  of  an  individual 2G7 

Court  cannot  direct  as  to  collection  of 2G8 

Not  imposable  to  defray  expense  of  x)rocuring  witness 

for  accused 2G8 

Eemission  of  in  case  of  poor  convict , 2G8 

Punishment  of  imprisonment  till  fine  paid 285 

FLAO  OF    TRUCE. 

Nature  of  privilege  of 2G9 

Not  a  protection  where  law  of  war  violated 2G9 

Distinguished  from  safe-conduct 2G9 

Offence  of  fraudulent  employment  of 329 

FOREION  SERVICE. 

Eemuneration  of  officer  for 269 

Authority  to  render 269-270 

FORFEITURE.    (By  operation  of  law.) 

Liability  for,  in  case  of  desertion 225-226 

Is  independent  of  sentence ; 270 

And  not  to  be  imposed  in  sentence 270 

Is  not  a  subject  of  remission 270 

Disposition  of  amounts  forfeited 270 

Authority  for  reimbursement  of  same 270 


538  INDEX. 

FORFEITURE  BY  SEWTEJVCE. 

Page. 

Limit  of  authority  of,  in  case  of  inferior  court.    (Art. 

83) 66 

Sentence  of  should  clearly  fix  the  amount .....       270 

Of  pay  cannot  be  effected  by  implication , .       270 

"     "  "       "        '^         "   mere  misconduct 271 

"     "  does  not  affect  allowances 271 

"  clothing  allowances 172-173, 271 

"  extra  duty  pay 271 

''pay,  &c.,  enures  to  U.  S.  only ....  271-272 

For  benefit  of  Soldier's  Home 272,  note. 

Of '^monthly"  pay,  effect  of 272 

In  connection  with  imprisonment  for  same  period 272 

Execution  of— against  what  pay  chargeable 272-273 

^^  ''     practice  of  Pay  department  as  to 273,  note. 

"  "     as  to  amounts  excepted  from 273 

'^          "      where  extending  beyond  term  of  enlist- 
ment         273 

Stoppage  of  against  pay  of  soldier  under  subsequent 

enlistment 273 

Execution  of  in  connection  with  reduction 273-274 

Can  not  affect  pay  already  received ;   274 

Or  bounty  money  paid  and  held  in  trust  for  soldier 275 

Upon  execution,  becomes  money  in  Treasury- 274 

Not  subject  to  be  withdrawn  excei)t  by  authority  of 

Congress ; 274 

Or  to  be  diverted  to  a  particular  fund 275 

FORGERY. 

As  an  offence  under  Art.  60  . .   33 

"    "         ''  ^'         ''     62 43 

FORMER  CONVICTIONS. 
Statement  of  in  specification ....  148-149 

FORTY    EIGHTH    ARTICLE.    (I^isibilities 
of  deserters.) 

Liability  to  make  good  time  lost,  incident  only  on  con- 
viction    21-22 

Need  not  be  imposed  in  sentence ., . .        22 

Not  affected  by  period  passed  in  arrest 22 

Cannot  be  enforced  after  a  discharge 23 


INDEX.  539 

FORTY  EIGHTH  ARTICLE— Continued. 

Page. 

May  be  waived  by  U.  S.,  and  how  23 

Liability  to  trial  after  expiration  of  enlistment 23 

Cannot  be  enforced  after  a  discharge ; 23 

Or  after  period  of  limitation  prescribed  by  Art.  103 ...  23 

FORTY  FIFTH  ARTICEE.    (Relieving^  tlie 
enemy,  &c.) 

Amenability  to  trial  under,  of  civilians 20 

"  Enemy '' — meaning  of  in  late  war 20 

Believing  may  be  hy  exchange  .  > . .    20-21 

"        as  distinguished  from  trading  with  enemy . .  21 

FORTY  SECOIVD  ARTICLE.    (Misbehavior 

before  enemy,  &c.) 

Misbehavior  before  enemy  defined , 19 

May  be  committed  in  Indian  war 19 

Construction  of  term — "  his  arms,"  &c 19 

FORTY  SEVENTH  ARTICEE. 

As  making  receipt  of  paj'  evidence  of  enlistment 222,  219 

FORTY  SaXTH  ARTICLE.    (Holdings  corre- 
spondence \i'itli  enemy,  &c.) 

Offence  of  holding  corresi:)ondence,  when  complete 21 

a        a  giving  intelligence,  proof  of 21 

FOIJRTBI  ARTICLE.    (DiscBiarg^e  of  soldiers.) 

Eight  of  soldier  to  discharge 2 

When  discharge  takes  effect 2-3 

Certificate  of  discharge  as  evidence 3 

The  two  kinds  of  discharge  distinguished 3 

FRAUD. 

Forms  of,  held  chargeable  under  Art.  60 33 

Meaning  of  "  fraud  "  in  Art.  100 82 

Fraud  as  vitiating  bid 183 

Discharge  obtained  by,  revocable  232-233 

FRAUDUEEIVT  CEAOI. 

Instances  of  under  Art.  GO 33 

FRAY. 

See  Twenty  Foueth  Article 13,  note. 


540  INDEX. 

FUEL,  AL-LO^H^AWCE. 

Page. 

Eight  to  of  officer  " awaiting  orders" 367 

"      ''    ''•  detailed  as  professor  of  college 370 

u       a    u  retired  officers 370,  note. 

a      u    u  officer  absent  on  sick  leave 370 

Furnisliing  of  to  families  of  officers  temporarily  ab- 
sent  370-371 

Allowance  of  fuel  equivalent  to  wood 370,  note. 

Effect  of  partial  remission  of,  by  way  of  exception 

from \ 214.-21^ 

Forfeiture  of  travel  pay 371 

''-        by  suspension  of  pay 469, 470 

FURL.OUOH. 


Disobedience  of  orders  by  soldier  on 10 

Arrest  of  soldier  for  civil  offence  when  on 31,  note. 

Jurisdiction  of  offences  committed  on 215-216 


G, 


OAMBL.INO. 

As  an  offence  under  Art.  61 39 

"    "         "           u         ii     62 45 

When  cognizable  as  an  offence,  generally 276 

Particularly  objectionable  in  case  of  disbursing  officer.  276 

OARNISHMENT. 

Of  military  pay,  unauthorized 160-161 

OARRISOIV  COURT. 

How  constituted,  &c.     (Art.  82.) 64-65 

Jurisdiction  and  power  of  punishment  of.     (Art.  83.)..  65-67 

OENERAL.  OF  THE  ARMY. 

Status  of  aids  of 103-104 

Not  eligible  to  the  office  of  Secretary  of  War 157,  note. 

OENERAL  ORDERS. 

Admissibility  in  evidence  of 256-257 

As  issued  from  Navy  Dei^artment 276,  note. 


INDEX.  541 

*'GE1VER4L.  SERVICE." 

Page. 

Enlistment  into  as  such  not  authorized „ . .       252 

Forfeiture  of  clothing  allowance  of  soldiers  detailed  in .      271 

OENERAL.  STAFF. 

Of  what  officers  it  consists 276 

Is  the  staff  of  the  President  as  Commander-in-chief .  .270-277 
As  such,  under  the  direction  of  the  Secretary  of  War.  277 
Members  of,  when  subject  to  taxation 429 

OIVINO  INTEI.I.IGE1VCE  TO  THE  ENEIflY. 

In  what  offence  consists.     (Art.  4G.) 21 

Suspension  of  writ  of  habeas  corpus  in  case  of  offender.       279 

OOOD  CONDUCT  IN  COJ^FINE^UENT. 

As  entitling  prisoner  to  abatement  of  punishment. .  .289-290 

GOVERNOR. 

Authority  of  to  apply  to  President  for  military  aid. .  .111-112 

Bond  of,  on  issue  of  arms  to  State 131 

Requisition  by,  for  military  prisoner 428-429 

Exercise  by,  of  war  power 481 

OIJARD  DUTY. 

Unreasonable   amount  of,  as  extenuation  of  offence 

under  Art.  39 18 

Liability  of  officer  for  unduly  imposing 18-19 

Imposition  of  as  a  i)unishment  not  favored 449 

Eespect  due  to  soldier  in  performance  of 453-454 

OUERRIEEA. 

Guerrilla  warfare  as  a  violation  of  laws  of  war 329 

OUIETY. 

Plea  of  does  not  supply  a  want  of  jurisdiction ... 8G,  211 

Introduction  of  evidence  with  plea  of  . .   203, 375-377 


542  INDEX. 


H, 


HABEAS  CORPUS. 

Page. 

Successive' suspensions  of  writ  of,  during  late  war. .  .278-279 
Question  whether  President  can  suspend  without  au- 
thority of  Congress ,  ... ...  278,  note. 

Effect  of  suspension  of  on  power  of  courts 279 

u     u  revocation  of  proclamation  of  suspension  of 

1865 279-280 

Power  of  State  courts  to  discharge  soldiers  on  habeas 

corpus 280-282 

Tarble's  Case.     Importance  and  finality  of  the  adjudi- 
cation  , 280-281,  note. 

Eeturn  to  writ  issued  by  State  court  281-282 

Officer  not  to  i)roduce  body  of  soldier 281, 282 

Order  of  discharge  by  State  court  to  be  resisted 282 

If  soldier  released,  to  be  re-arrested 282 

Procedure  where  writ  issued  by  U.  S.  court 282 

Suspension  of  writ  as  incident  to  martial  law 318,  note. 

HARE>  I.ABOR. 

See  Imprisonment 286 

HEAD  OF  DEPARTMENT. 

Authority  of  to  reopen  settled  claim , .     ...       164 

Cannot  be  made  arbitrator  between  conflicting  claim- 
ants   166,407 

Authority  of  to  employ  counsel 198, 395-397 

As  representing  the  President,  generally 445 

Authority  to  settle  taxes  due  by  U.  S 476 

HOLDINO      CORRESPONDENCE       TVITH 

THE    ENEMY. 

What  may  constitute  the  offence  of.     (Art.  46.) 21 

Suspension  of  writ  of  habeas  corpus  in  case  of  ofi<ender.       279 


INDEX.  543 

HOMICIDE. 

Page. 

As  cognizable  under  Art.  58 27 

"  "  i*         "62, 42 

Averment  of  as  matter  of  aggravation  in  charge. .....      153 

Justifiable,  as  distinguished  from  manslaughter 313, 314 

Definition  of  murder 341 

"  "  manslaughter 341 

Killing  of  person  by  mistake 341 

"        '^  prisoner  of  war 341-342,393 

HOiVORABLE  DISCHARGE. 

By  order  under  Art.  4 3 

In  general,  see  DiscHARaE 231-234 

HOSPITAL. 

Detached  service  at,  effect  of  under  Art.  20 8 

Medical  ofiicers  ''  on  duty  "  when  attending 17,  319 

Time  passed  in,  as  affecting  liability  of  deserter 22 

Offence  of  appropriating  stoj-es  furnished  for 39 

Amenability  to  military  jurisdiction  of  attendant  at..  48 

Notice  of  order  to  officer  in 351 

HOURS  OF  SESSION. 

Mandatory  x^rovision  in  regard  to.     (Art.  94.) ........   77-78 

Statement  of  in  record 419-420 


I. 

lEEEGAE  ORDER. 

Disobedience  of  not  an  offence 9 

Instances  of 10 

Liability  for  consequences  of  execution  of 9,  352-353 

IMPRESSITIENT. 

As  distinguished  from  capture 140 

I]«PRISOBiI?IENT. 

By  sentence  of  inferior  court.     (Art.  83.) 66 

In  a  penitentiary.    (Art.  97.) 80-82 

"  connection  with  dishonorable  discharge — order  of 

execution 234 


544  INDEX. 

UnPRISONMENT— CoMtiemed. 

Page. 

Sentence  should  fix  precise  term  of 284 

Proper  form  of  sentence  of 284 

Execution  of  sentence  of,  in  general 284 

May  be  imi^osed  to  continue  beyond  term  of  enlist- 
ment  .-.., 284-285 

Imprisonment  till  fine  paid,  legal ; 285 

But  sentence  sliould  iireferably  fix  a  limit 285 

Eeviewing  officer  cannot  imprison,  to  enforce  payment 

of  fine - 285 

Sentence  of,  when  commences  to  be  executed 285, 286 

Period  of  long  arrest  cannot  be  credited  on  term  of; . .       286 

But  may  be  ground  of  mitigation  or  remission 286 

Authority  to  impose  labor  under  sentence  of  simple  im- 
prisonment        286 

When  prisoner  may  properly  be  ironed 286 

Discipline  authorized  at  Military  Prison 287 

Authority  to  change  place  of  confinement 287 

Too  indidgent  execution  of  sentence  unauthorized 287 

Prisoner  released  by  mistake  may  be  remanded  ; . . .         287 

So  where  escaped  and  rearrested  ; 287-288 

Unless  term  to  which  sentence  limited  has  expired . .       288 
Effect  of  discharge  from  the  service  as  terminating  im- 

imsonment 234,  288 

Sentences  of  imprisonment  when  cumulative 288-289 

Continuing  imi^risonment  under  successive  sentences .       280 
Deductions  on  account  of  good  conduct  of  prisoner ; . .       289 

Authorized  even  after  partial  remission 289-290 

Solitary  confinement — limit  of 454 

IMPROVEJTIEl^T   OF  HIVERS  AND   HAR- 
BORS. 

Duty  of  executive  officers  emj^loyed  on,  generally 290 

Authority  to  remove  wrecks  as  obstructions  to  com- 
merce  290 

Contract  for  removal  of  same 291 

Private  interests  to  be  subordinated  to  public 291,  note. 

II¥OIAM. 

Arrest  of  by  military 113-114 

Instruction  of  youth  of   115 

Trade  with,  in  general 291-292 


INDEX.  545 

INDIAN— Contitiiied. 

Page. 

Trade  with,  by  post  trader   • 387 

War  with,  nature  of 293 

When  competent  as  a  witness 482 

INDIAN  AGENT. 

When  officer  of  army  may  be  detailed  as  .....  115, 159,  note. 

INDIAN  COUNTRY. 

The  term  as  applied  to  Alaska 105,  292,  (notes.) 

Defined,  with  reference  to  statutes  regulating  Indian 

trade,  &c ,  - .  .291-292 

Authority  to  destroy  liquor  in 292-293 

"  "        "       buildings  in  which  liquor  kept..       292 

"  ^'  arrest  for  introducing  liquor  in  j 292 

Or  for  otherwise  being  in,  in  violation  of  law 114, 292 

Authority  of  i)Ost  trader  to  trade  with  Indians  in 387 

INDIAN  RESERVATION. 

Authority  to  expel  intruders  from  by  military  force . .  114, 292 
Establishment  of  military  reservation  on 338 

INDIAN  TTAR. 

Authority  to  emi^loy  volunteers  for,  during  late  war . .  12 

Misbehavior  before  the  enemy  in 19 

Jurisdiction  over  civil  employees  in 49 

i^ature  of,  defined , . .  293 

Mere  i)redatory  incursions  do  not  constitute 293 

Attitude  of  Cherokee  nation  in  late  war 293 

Eights  of  Indians  once  hostile,  on  returning  to  alle- 
giance  , 293 

Sandy  Creek  Massacre 293-294 

INFERIOR  COURT. 

Constitution  and  composition  of.     (Arts.  SO,  81,  and 

82.) G1-G5 

Jurisdiction  and  power  of  punishment  of.     (Art.  83.) .  65-67 

"INFERIOR  OFFICER." 

Appointment     of    by     President     under     Constitu- 
tion   106-107, 462,  464,  note. 

INJUNCTION. 

By  State  court  of  officer  of  U.  S 163 

35  D 


546  INDEX. 

"IN  THE  I.INE  OF  DUTY." 

Page. 

See  Pension 373 

IIVSAWITY. 

Of  soldier,  as  affecting  validity  of  enlistment 2,  249-250 

"  accused  on  trial,  procedure  in  case  of 294 

"  witness,  "  ''     ''     "  294 

^'  officer  as  affecting  form  of  rendering  his  pay 370 

"   officer  as  affecting  resignation 431 

IIVTEKCOUKSE  TTITH  ENEMY. 

See  Law  of  War 303-305 

INTEREST. 

Not  generally  allowed  on  claims 166 

Stipulation  for  not  generally  admissible  in  public  con- 
tract        166 

INTERPRETER. 

Improper  for  member  of  court  to  act  as ;  . .  „ 295 

So  for  officer  who  preferred  charges 295 

]!ifot  required  to  be  sworn 295 

Generally  sworn  by  judge  advocate 295 

*»  INTOXICATE©." 
Meaning  of  term  in  Art.  3 . . 2 

INTRUDER. 

Authority  to  expel  from  Indian  reservation 114,  292 

^^  "       "        "     military  reservation 114, 339 

IRONIN<G}  OF  PRISONER. 

When  allowable  in  arrest  or  confinement 51, 121, 286 

"  "         ontrial 219 

IRREOUEARITY. 

See  Defects  in  Proceedings,  &c 218, 420-422,  note. 

INVENTOR. 

See  Compensation  for  property  taken  for  pub- 
lic USE 179-180 


INDEX.  517 


JOINT  OFFENCE. 

Page. 

When  offence  chargeable  as  joint 153 

Desertion  not  so  chargeable 153 

JUI>OE  ADVOCATE. 

]N'ot  provided  for  a  field  officer^s  court.     (Art.  80.) 62 

Authority  of  to  swear  witnesses.    (Art.  92.)   75 

How  sworn  when  a  witness.     (Art.  92.) 75 

Employment  of  counsel  to  assist 198-199 

Under  Art.  74  may  be  detailed  for  inferior  courts 290 

Any  commissioned  of&cer  may  be  detailed 296 

Detail  of  medical  officer  not  in  general  to  be  resorted 

to 319 

A  separate  detail  of,  necessary  for  every  court  296 

Same  officer  may  be  detailed  as,  for  successive  courts. 296-297 
Staff  judge  advocate  cannot  act  as,  unless  regularly 

detailed 297 

Eelieving  of  and  making  new  detail  of 297 

Court  cannot  reheve  or  detail  a  member  as .204, 297 

Detail  of  civilian  as 297-298 

Kot  subject  to  challenge 298 

Officer  hostile,  &c.,  to  accused,  not  to  be  detailed  as . .       298 

Authority  to  entertain  charges 298 

"         as  to  amending,  &c.,  charges 155,  298-299 

Authentication  of  charges  by 154 

Conduct  of  prosecution  by  . .  - 299 

How  far  to  counsel  and  assist  the  accused 299 

Has  no  power  of  arrest  or  restraint  of  accused 299 

Province  as  to  furnishing  oj)inions  to  court 300 

Keceiving  and  recording  of  his  opinions '. 300 

Duty  when  remaining  with  the  court  on  deliberation . .       300 

"    as  to  preparation  of  record 300 

Effect  of  his  temporary  absence  from  court  room 300-301 

How  examined  when  testifies  as  a  witness 301 


548  INDEX. 

JUDGE  ADVOCATE— Continued. 

Page. 

^'ot  iu  general  to  be  detailed  for  other  duty 301 

Entitled  to  closing  argument , 301 

May  present  '^statement"  tliough  accused  does  not. . .       301 

His  statement  not  to  contain  new  evidence 301 

Authentication  of  record  by . 301 

Authority  of  to  ai)point  reporter ....,,       301 

Not  subject  to  arrest  by  the  court ; 301 

But  liable  for  a  contempt  under  Art.  8G 301-302 

Duty  of  as  to  forwarding  records  to  reviewing  officer . .       302 
Authority  of  to  administer  oaths  under  par.  1031,  A.  E .       302 

The  only  official  prosecutor  in  our  law 399 

To  be  present  at  a  revision 419 

But  not  authorized  to  correct  record 441 

Competent  to  testify  as  a  witness 483 

Duty  as  to  summoning  witnesses  for  accused 483-484 

u      u  u  furnishing  witness  with  certificate  of  at- 
tendance         487 

Authority  as  to  service  o±  summons    484-485 

"          "    "  issuing  and    serving  attachment  for 
witness , 489-490 

JURISDICTION. 

Of  general  court  martial.     (Court  Martial,  II.) 206-216 

"  inferior      "  "  (Eighty  Third  Article.) 65-67 

*^  military  commission.     (Military  Commission,  II.). 327-333 

Cession  of  by  State  to  United  States 141-144 

JURY  DUTY. 

Liability  of  retired  officer  to 433 

JUSTIFICATION  OF  SURETY. 

See  Bond  .... 128-129, 131 


K. 

KIEEINO. 

When  chargeable  as  a  military  offence 27,  42,  43 

Of  soldier  by  officer,  when  justified 313, 314 

When  amounting  to  manslaughter 314,  341 

"  ''  ^'  murder 341 

Of  prisoner  of  war  341-342,  393 


INDEX.  549 

Page. 

Meaning  of  as  employed  in  Art.  3 2 

u         a    u  li  a     a     3 4. 


Not  imputable  to  U.  S.  in  delaying  to  sue  on  bond 128 

L.AND. 

Public,  as  distinguished  from  reservation  338 

Of  the  United  States,  authority  to  dispose  of 400-404 

Acquisition  of  for  the  United  States 405-40G 

r-ARCEWY. 

As  an  offence  under  Art.  58 , 27 

'^     "         "  ''      Art.60 3C,37 

"     '^        "  ^'      Art.  62 42, 43 

Fact  of  drunkenness  as  admissible  under  charge  of . . .       246 

"I.ATFFUI.  COMinAIVD." 

Significance  of  term  as  employed  in  Art.  21 9 

Disobedience  of  order  not  lawful,  not  an  offence 9 

Instances  of  orders  held  not  lawfid 10 

Opposition  to  an  unlawfid  command,  not  mutiny . 12 

Illegal  order  of  superior,  no  justification  to  inferior  .  .352-353 

"L.A1FS  OF   THE  L,A]VD." 

Meaning  of  term  as  used  in  Art.  59 30 

r-ATT  OF  TFAR. 

Defined.    A  part  of  the  law  of  nations 303 

Inhibits  all  intercourse  with  enemy  ; 303 

Except  as  authorized  by  the  State 303 

Prohibition  of  intercourse  during  the  late  war 303-304 

Instances  of  violation  of  same    304-305 

Violation  of,  as  committed  by  foreigner 304-305 

Instance  of  party  violating  j^laced  under  surveillance 

and  bond 305 

Retaliation  for  illegal  arrests  authorized  by 305 


550  INDEX. 

JLA^W  OF  WAR— Contmued. 

Page. 

Suppression  of  hostile  newspaper  as  justified  by 305 

Illicit  correspondence  through  newsi^ajDers  in  viola- 
tion of 305-306 

Seizure  of  moneys  as  justified  by 306 

Contributions  exacted  from  enemy  justified  by 306 

As  authorizing  commander  to  suspend  local  laws 306-307 

"  "  institution  of  si)ecial  tribunals 307-308 

Provost  courts  during  late  war 307,  308,  note. 

Exceptional  jurisdiction  of  such  courts,  as  confirmed 
by  Supreme  Court 308,  note. 

Early  and  later  adjudications  as  to  such  courts 308-309, 

(note.) 

Jurisdiction  of  military  commissions   under  law  of 

war 327-328 

Violations  of,  as  passed  upon  by  military  commission.  328, 329 

I.EAVEN1VORTH  PRISON. 

See  Military  Prison 335 

1.EAVE   OF  ABSEMCE. 

Effect  of  on  amenability  to  military  jurisdiction.  .31,  note,  45, 

215-216 

^'       "    '^  authority  to  convene  courts  martial 54 

"       "    "  "         "  act  on  proceedings  of  courts 

martial 89-90 

Officers  on  cumulative,  entitled  to  allowance  for  quar- 
ters        309 

Eight  to  cumulative,  as  affected  by  absence  under  sus- 
pension   310 

Principle  that  leave  terminates  at  station,  illustrated .       310 

Eight  to  mileage  where  leave  suspended  by  order 323 

EEASE. 

Of  land,  &c.,  fortheU.  S 181,187-188 

For  what  term  authorized  to  be  taken 187, 188 

Authority  to  lease  land  belonging  to  U.  S 401 

EESSER  IIVCEUDED  OFFENCE. 

Trial  for,  as  affected  by  Art.  102 83 

Conviction  of,  an  acquittal  of  greater  offence 228 

Finding  of,  under  charge  of  greater  offence 264 


INDEX.  551 

Page. 

From  State,  for  public  sale 311 

Of  post  trader 383 

To  occupy  land  of  U.  S 403 

I.IIIIITATI01V  OF  PROSECUTIOJVS. 

Law  of  as  governing  courts  martial.     (Art.  103.) 85-88 

Not  applicable  to  proceedings  before  retiring  boards . .       431 

LIQUIDATED  DAMAGES. 

Eelease  of  contractor  from  by  Secretary  of  War 193 

Effect  of  stipulation  for  in  contract 193,  note. 

As  distinguished  from  a  penalty 193-194,  note. 

EOSS  OF  FIEES. 

A  recognized  punishment  in  case  of  an  of&cer 311 

"  continuing  "  tiU  remitted 311, 312,  358 

Does  not  require  confirmation  by  President 311 

Effect  of — what  rights  divested 312 

When  an  objectionable  punishment S12 

"      severe  as  compared  with  suspension 312 


M. 

MAJORITY. 

Governs  in  votes  and  findings  of  courts  martial.  .266,  400, 479 

Court  cannot  be  adjourned  against  will  of c 392 

Minority  cannot  record  protest  against  will  of 400 

MAKING  GOOD  TIME  EOST   BY  DESER- 
TION. 

See  Forty-Eighth  Article 21-23 

"MANIFEST  IMPEDIMENT." 

What  constitutes,  in  sense  of  Art.  103 , .  86-87 

MANSEAUGHTER. 

As  an  offence  under  Art.  oS 27 

"    "       "  "         "     02 42, 43 

In  killing  of  soldier  by  officer 314 

As  distinguished  from  justifiable  homicide 313,  314 

'^  "  ^'      murder 341 


552  INDEX. 

MARRIAOE. 

Page. 

As  affecting  validity  of  subsequent  enlistment 249 

Cannot  be  solemnized  by  officer  of  Army '. . .       315 

Authority  to  prohibit  soldiers  from  contracting 315 

By  soldier,  though  i)rohibited,  not  a  military  offence .  10, 315 

MAKTIAJL  I.AW. 

Defined -... 315-316 

Effect  of - .    316 

Does  not  authorize  excess  or  wanton  violence 316 

Authority  exercised  by  military  commander  under. . .       316 
As  authorizing  the  enjoining  of  proceedings  of  courts .  316-317 

When  occasion  for  no  longer  exists 317 

Existence  of  in  Baltimore  in  1865 317 

Period  of  its  existence  in  Dist.  of  Col 317-318 

Its  relation  to  suspension  of  writ  of  habeas  corpus . .  318,  note. 

MAXIMUM. 

Of  members  of  general  court  martial.     (Art.  75.) 58 

Statement  in  convening  order  where  less  number  de- 
tailed   59-60 

"MAY." 

Instance  of  "shall"  construed  as  equivalent  to.     (Art. 

58.) 27 

In  a  statute,  when  construed  as  must  or  sliall 458-459 

MEDICAE,  CADET. 

Status  of  under  Act  of  Aug.  3,  1861 367 

Right  to  service  pay  on  account  of  service  as 367 

MEDICAI.  OFFICER. 

When  '^  on  duty  "  in  sense  of  Art.  38.  17 

Acceptance  of  civil  office  by 158 

Responsibility  of  for  health  of  the  command 318 

Effect  of  his  action  in  excusing  men  from  duty 318 

Eligible  for  service  as  member  or  judge-advocate  of 

court  martial 318-319 

But  in  general  not  to  be  detailed  as  such,  if  avoidable.  319 
Authority  to  employ  private  physician  under  par.  1309, 

A.  R 319 

MEDICAE  STOREKEEPER. 

See  Extra  Pay 261 


INDEX.  553 

M£MB£B  OF  COURT. 

Page. 

Legalmaximum  and  uiinimiim  of  members.     (Art.  75.).  58-59 
A  member  not  punishable  for  contempt.     (Art.  8G.)  .60,  note. 

Liability  of  to  a  challenge.     (Art.  88.) 70-73 

Exemption  of  from  arrest  while  in  court 120 

Not  entitled  to  be  compensated  for  acting  as  clerk  to 

court 172 

"    excusable  by  court  except  on  challenge 72, 201 

Court  cannot  authorize  to  act  as  judge  advocate 201 

Detail  of  officer  on  court  and  commission  at  same  time .       206 
Member  not  in  general  to  be  charged  with  other  du- 
ties   319-320 

Liability  to  other  duty  as  afiected  by  par.  901,  A.  li . .       320 

Accountability  of  for  absence  from  court 320 

Explanation  of  absence 320 

Effect  of  return  of  absent  member 320-321 

Adding  of  new  member , . .  320-321 

.Precedent  in  Hull's  case 320-321 

Effect  of  dismissal,  retirement,  &c.,  of  member 321 

"       "  promotion  of 321-322 

Status  of  when  testifying  as  witness 322 

Equality  of  members  on  a  trial 392 

Majority  to  govern 392,400 

Authority  of  member  to  record  protest 400 

"  "        "         ''  correct  record 441 

Obligation  of  all  members  to  vote  a  sentence 447 

ME]UB]E:R    of    OB    DFIiFGATE    TO  CO]¥- 
OR£SS. 

Prohibition  of  contract  with 189-190 

When  prohibition  becomes  operative 190,  note. 

See  Officers'  Mess 466 

MEXICO. 

Jurisdiction  of  court  martial  over  offences  committed 

in  207-208 

Operation  of  extradition  treaty  with 259-260 

MIDDL.E  NAME. 

Immaterial  if  omitted  in  charge  or  sentence 149 

IS^ot  a  necesary  part  of  christian  name  in  law 477 


554  INDEX. 

Page. 

Of  officer  on  leave  ordered  to  return  to  station 323 

"      "       ^^      "     orderedtoduty  and  then  to  station.       323 

'•'■      "      ordered  to  attend  his  own  trial 323 

"      '^      permitted  to  delay  return  under  orders..  .323-324 

MII.5TARY  ACABEMY. 

Appointment  of  cadet  of 130-138 

Eegulations  of,  amenability  of  cadet  for  breach  of 138 

Eeappointment  of  cadet  of,  after  discharge  as  deficient .       138 

Professor  of,  right  to  pay 398 

Sentence  of  suspension  from,  effect  of 471 

MIlLITAIfY— AMENABII.ITY  OF  TO  CIVIIL 
AUTMORSTT. 

Arrest'of  by  civil  process 28-31, 121, 161-163 

Exemx^tion  of  from  arrest  for  debt 122 

Liability  of  to  trial  by  civil  courts 214-215 

Status  of  at  place  under  exclusive  jurisdiction  of  U.  S .       144 

MII.ITARY  COMMIS!§IOJ¥, 

Origin  of  in  Mexican  war 324  and  note. 

Use  of  in  late  war 324-325 

A  recognized  tribunal  for  time  of  war 325-326 

Composition,  procedure,  &c.,  not  regulated  by  statute  .       326 

In  these  respects  assimilated  to  court  martial 326 

Three  members  the  minimum 327 

Sworn,  &c.,  like  court  martial 327 

Jurisdiction  of 327 

Two  classes  of  offences  cognizable  by 327-328 

Legitimate  acts  of  war  not  cognizable  by 328 

Violations  of  laws  of  war  passed  uiDon  by  during  late 

war 328-329 

Crimes  similarly  passed  upon 329 

Classes  of  offences  not  within  jurisdiction  of . . 330 

No  jurisdiction  of  offences  of  Indians  with  whom  no 

war  pending 330-331 

None  of  offences  properly  cognizable  by  court  martial.       331 

Jurisdiction  of  under  lleconstruction  Acts .   332-333 

Limit  to  period  of  same  j 333 

And  of  period  for  execution  of  sentences 333 

Jurisdiction  of,  in  general,  when  it  terminates 333 


ITs^DEX.  555 

ItllLITARY  CO.HiniSSIOIV-Commued. 

Page. 

lias  no  jiirisdiction  of  civil  actions  for  damages,  «S:c . . .       333 
Its  power  to  sentence  not  regulated  by  statute  but  dis- 
cretionary  333 

Awards  criminal  lumisbments,  not  civil  judgments;  ..       333 

Nor  punishments  reserved  to  courts  martial 333- -334 

Eeference  by  to  civil  statutes  in  fixing  measure  of  pun- 
ishment         334 

Character  of  sentences  imposed  by  during  late  war. 334,  note. 

MII.ITARY  DUTY. 

Not  properly  imposable  by  way  of  punishment 349 

MII.ITARY  GOVERNMENT. 

As  authorized  by  conquest  and  occux^ation,  in  war 303, 

316,  note,  327,  328,  note. 
MILITARY  OFFENCE. 

As  distinguished  from  felony  or  misdemeanor  ........       334 

No  consequences  of  felony  incident  to  conviction  of. . .       334 

MILITARY  PRISON. 

Jurisdiction  over  discharged  soldiers  held  as  prisoners 

at 212-214 

Discipluie  at,  authorized  by  Sec.  1353,  E.  S 212 

Execution  of  sentence  of  imprisonment  at 284-287 

Credit  for  good  conduct  under  sentence ......  ... 289-290 

Authority  to  dispose  of  proceeds  of  articles  manufact- 
ured b}'  i^risoners 335 

Shoes  manufactured  at  may  be  issued  to  army 335 

Requirement  of  Sec.  1345,  R.  S.  as  to  Board  of  Gov- 
ernment        335 

Eequirement  of  Sec.  1346,  E.  S.  as  to  visiting  prison . .       335 
Subsistence  of  prisoners,  law  in  regard  to 466 

MILITARY  RESERVATION. 

Service  of  civil  i^rocess  on 161-1C3 

Effect  of  cession  of  State  jurisdiction  over 144 

Status  of  occupants  where  exclusive  jurisdiction  vested 

inU.  S 144 

What  is  a  military  reservation . .  336-337 

Authority  for  establishing 336,  note. 

Form  of  declaring 337,  note. 


556  INDEX. 

MII.ITAISY  RESERVATION— Contimied. 

Page. 

Eelinquishment  of  by  President  337,  note. 

Not  a  part  of  the  public  lands , 338 

Establishment  of  within  an  Indian  reservation 338 

Cutting'  of  timber  on  for  use  of  post 338 

Trespass  upon  of  i^rospectors  for  mines 338 

Eemoval  of  intruders  from 114, 339 

Status  of  reservation  at  Washington  Arsenal 339 

Authority  to  sell  land  of 9, 10,  400-401 

"  "  dispose  of  usufructuary  interest  in 401-403 

"  ^'  give  license  for  temi)orary  occupation  of.  403-404 

''  "  allow    post    trader    to    erect    buildings 

upon 386,  387,  403 

Liability  to  local  law,  &c.,  of  trader  doing  business  on.      386 

MII.ITARY  STOREKEEPER. 

Eight  to  service  pay  of  one  appointed  in  1861 339-340 

Exchange  by  with  captain  of  infantry 340 

MIEITIA. 

As  to  composition  of  court  for  trial  of S7 

Distinguished  from  volunteers  in  late  war 60 

MIJ^IMUM. 

Of  members  of  general  court  martial.     (Art.  75.) 59 

A  less  number  incompetent  to  try ....  59 

Of  members  of  military  commission 327 

MINOR. 
Discharge  from  enlistment  of  . , 250-251, 280 

MISAPPROPRIATION. 
I^atui^eof  offence.     (Art.  60.) 36 

MISBEHAVIOR  BEFORE  THE  ENEMY. 

See  Forty  second  Article 19 

MISDEMEANOR. 
A  military  offence  not  a,  in  legal  sense 334 

MISNOMER. 

As  matter  for  plea  in  abatement 149,  379 

"  constituting  a  variance 477 


INDEX.  557 

MISTRIAL.. 

Page. 

!N"ot  a  trial  in  sense  of  Art.  102  . 84 

Instances  of 83-84 

MITIGATIOIV. 

Nature  of 94 

Distinct  from  commutation 94 

Grounds  of 359-360 

"MOIVTH." 

Construction  of,  in  a  sentence 450 

MOUNTED  PAY. 

What  ofacers  entitled  to    367-3G8 

MUNITIONS  OF  TTAR. 

Disposition  of  those  captured  from  the  enemy 4, 139 

Free  transportation  of  over  Georgetown  bridge 340 

MUKI>£R. 

Jurisdiction  of  court  martial  of 27,  42 

Definition  of „ 341 

Manslaughter,  how  distinguished  from 341 

Degrees  of 341 

In  killing  one  person  when  intending  to  kill  another. .       341 

"      "        a  prisoner  of  war 341-342 

Presumption  of,  in  case  of  ofiicer  from  use  of  sword . . .      343 

MUSICIAN. 

Amenability  to  orders  of 10 

Status  of  ''principal  musician" 107 

u      u  a ehief  musician" 156 

MUSTER  INTO  U.  S.  SERVICE. 

Effect  of  in  a  case  of  a  volunteer  officer 208 

MUSTER  OUT. 

As  a  form  of  honorable  discharge 232 

"    affecting  rights  of  pay 362 

"          "        amenability  to  trial  of  volunteer  officer..  37 

"          ''        status  of  member  of  court 321 

MUSTER  ROEE. 

As  evidence 222,  256 


558  INDEX. 

MUTI]\OUS  CONDUCT. 

Page. 

As  distinguished  from  mutiny 11 

MUTINY. 

Offence  defined 11 

Distinguislied  from  mutinous  conduct 11 

Effect  of  good  faith  on  part  of  offender 11 

Opposition  to  illegal  order  not  mutiny 12 

Offence  as  extenuated  by  oppressive  conduct  of  supe- 
rior   12-13 

Mutiny  as  justifying  the  taking  of  life 314 


K 


NAVY. 

Disposition  of  deserter  from 24^  250 

Eight  to  citizenship  on  account  of  service  in 105 

Statutory  sanction  of  Eegulations  of 117-118 

EnUstment  of  deserter  from  , 24, 249-250 

Dismissal  of  officer  of 239 

General  Orders  of 276,  note. 

Offence  of  peijury  under  code  of 374,  note. 

NATIONAI.  CEMETERY. 

Effect  of  appraisement  for  by  U.  S.  court ,       343 

Ground  for  new  api^raisement 343 

Exclusive  jurisdiction  over,  how  vested  in  U.  S 343 

Authority  to  erect  buildings  for w 343-344 

"  "    expend  ai)pro]3riation  for 344 

"         of  Supt.  to  arrest  trespassers .       344 

Supt.  as  a  civilian  not  amenable  to  military  trial 50,  344 

Kemoval  from  office  of,  for  misconduct 344 

Liability  of  to  work  on  roads  of  State 144-145,  note. 

NATIONAIL  HOME  FOK  DISABLED  YOE- 

UNTEERS. 

Inmates  of  not  amenable  to  military  jurisdiction 214, 

216,  (notes.) 
"       "    "  competent  to  compose  a  court  martial..      216 


INDEX.  559 

Page. 

As  offences  under  Art.  62 44-46 

WEl?r  MEMBER. 

To  be  separately  sworn 68 

Addition  to  the  court  of 320-321 

Testimony  to  be  read  to 320 

Euling  on  Hull's  trial 320-321,  note. 

NEir  TRlAIi. 

Eare  in  military  practice 106,  345 

When  authorized 344-345 

!N^ot  demandable  as  a  right 345 

NINETEENTH    ARTICI.E.    (Disrespect    to 
President.) 

Offences  under  during  late  war 7 

Usual  punishment  of 7 

Mere  political  discussions  not  made  subject  of  charge . .  7 

NINETY  FIRST  ARTICLE.    (Depositions.) 

Conditions  imposed  by  Article  uj)on  admission  of  depo- 
sitions     73-74 

Waiver  of  restrictions  of  Article 74 

By  whom  depositions  may  be  taken 74 

Depositions  of  high  officials , . .  74 

'''  cannot  be  introduced  in  part  except  by 

consent 74 

If  party  taking  does  not  introduce,  other  party  may . .  74 

Keither  party  can  withhold  deposition  from  the  other.  74 

Deposition  of  foreign  witness 75 

^'         by  person  other  than  intended  deponent  . .  75 

NIJ^ETY   FOURTH   ARTICEE.     (Hours  of 
session.) 

The  Article  imperative  in  terms 77 

Proceedings  not  within  hours,  inoperative 78 

Statement  of  hours  in  record 78 

Motion  to  adjourn  not  a  "jn'oceeding" 78 

NINETY  NINTH  ARTICLE.    (Dismissal  of 
officer.) 

See  DismssAL,  I,  II 236-242 


560  INDEX. 

WIWETY  SECOND  ARTIC1.E.    (Oath  of  wit- 

Page. 

Form  prescribed,  how  may  be  varied 75 

By  usage,  oath  administered  by  judge  advocate 75 

Where  judge  advocate  a  witness,  president  to  admin- 
ister    75 

Witness  to  be  sworn  but  once 75 

WIMETY   SEVENTH    AKTICI.E.    (Conline- 
ment  isi  pemiteMtiar^'.) 

Prohibits  this  i^unishment  for  purely  military  offences.  80 

Where  unauthorized,  reviewing  olhcer  cannot  legalize . .  80 
Authorized  for  larceny,  &c.,  though  charged  under 

Art.  62 80-81 

Meaning  of  term  " penitentiary" 81 

What  penitentiaries  included 81 

Status  of  soldier  committed  to  penitentiary 81 

Designation  of  particular  X3enitentiary  for  execution  of 

sentence 81 

Term  of  confinement  at  discretion  of  court 81 

Eeference  to  State,  &c.,  laws  on  the  subject 81 

Authority  to  commit  to  penitentiary  in  execution  of 

sentence  of  sim^^le  confinement 81-82 

NINETY    SIXTH    ARTICI.E.     (Deatli    sem- 

teaice.) 

Two  thirds  need  not  concur  in  finding 78-79 

Statement  in  record  as  to  concurrence  in  sentence 79 

Finding  necessary  to  sustain  death  sentence 79 

Court  not  to  designate  time  or  i)lace  of  execution ; 79 

If  done,  may  be  disregarded  by  reviewing  officer 79 

Day  fixed  for  execution  of  sentence  may  be  changed . .  79 

Euling  of  Supreme  Court,  &c.,  in  Coleman's  case 79,  note. 

NINETY     THIKO     AISTICI.E.       (Covitmu- 
ances.) 

Continuance  on  account  of  absence  of  witness 76, 155 

Eight  to  where  witness  absent  by  sux^erior  orders ...  76,  note. 
Eeasonable  ground  shown  entitles  to  some  continuance .         76 

Effect  of  imi^roper  refusal  of  continuance 76-77 

Eight  to  continuance  where  origmal  charges  amended 

before  trial . . 77 


ETOEX.  561 

NINETY  THIKD  ARTICLE-Continued. 

Page. 

So,  where  material  amendment  allowed  by  conrt 77 

Eiglit  to  continuance  in  order  to  i)rocure  counsel .         77 

NINTH  ARTICIiE.    (Captured  stores.) 

Accords  with  law  of  nations  and  of  war 4 

Authority  to  dispose  of  captured  property 4-5 

Booty  rarely  awarded  to  army 5,  note. 

NOLLE  PKOSE<iUI. 

Authority  for  entry  of 345 

Court  or  judge  advocate  cannot  resort  to  at  discretion .       345 

NON-COMMISSIONEO  OFFICER. 

Disobedience  of  order  of 9 

Apx3ointment  of 110-111 

A  "principal  musician"  not  a 107 

"  "chief  musician"  not  a 156 

Eelations  with  company  commander 176-177 

u  u     recruiting  officer 346 

Forfeiture  of  pay  of,  on  reduction 273-274 

Eeduction  to  ranks  of 423 

Right  of  to  his  warrant ,   ...  - 423 

Suspension  as  a  punishment  for 471 

NON-INTERCOURSE. 

Law  of,  in  war , .  .21,  303-305 

NOTICE. 

Of  approval  of  sentence  of  dismissal 236 

"  order  of  dismissal 240, 351-352 

Essentials  of,  to  render  operative 350-351 

Of  acceptance  of  resignation 430 

0. 

OATH. 

Of  enlistment.     (Art.  2.) 1 

"  the  members  of  the  court.     (Art.  84.) 67-69 

Authority  to  administer  to  challenged  member.     (Art. 

88.) 72 

36  D 


562  INDEX. 

OATH— CoMtiiMied. 

Pago. 

Authority  to  administer  to  witness.     (Art.  92.)  , . 75 

"  ''  ''  "   Board  of  Investigation 124 

"  ''  ''  "   Board  of  Survey 125 

Of  interpreter,  usage  as  to  administering 295 

Authority  of  judge  advocate  to  administer  under  par. 

1031,  A.  E  ......  -    302, 347 

Of  members  of  military  commission 327 

Officer  of  army,  when  authorized  to  administer 347 

Oath  of  office.     (Sec.  1756,  R.  S.) 348 

Mere  agent  not  required  to  talie 348 

Nor  i^rivate  physician  employed  under  par.  1309,  A.  R .       348 
Officer  of  the  army  not  excused  from  taking  by  relig- 
ious scrui)les 348 

Oath  required  by  Sec.  1757,  E.  S 348-349 

^'     of  reporter 427-428 

OFFERING     VIOL.E1VCE     TO     SUPERIOR 

OFFICER. 

See  Twenty  First  Article 8-9 

OFFICE. 

Appointment  to  military 106-111 

Distinguished  from  detail 110,  368 

Civil  deiined 157, 348 

Distinguished  from  employment <. 158, 348 

Divestiture  of  military 239 

Oath  of,  under  Sees.  1756  and  1757,  E.  S 348,  349 

Tenure  of  where  term  not  fixed 383 

Holding  of  two  offices  at  once 434 

Effect  of  sentence  of  suspension  on  military  office . . .  1468,  47 
Tax  on  by  State  authorities 472,  note. 

OFFICER. 

Meaning  of  word  as  emi^loyed  in  Code » . . .  9,  note,  96 

Authority  of  officer  to  demand  a  court  martial 53 

"  ^'        "      '^        '•         to  be  placed  in  arrest.       119 

Emi)loyment  of  on  civil  duties   111-115, 158 

Detail  of  as  Indian  Agent 115, 159 

Exemi)tion  of  from  civil  process    122, 161 

Authority  of  to  seize  private  property  for  i)ublic  use . .       168 
Detail  of  as  college  i^rofessor 115, 174-175 


INDEX.  563 

OFFICER— Continued. 

Page. 

Foreign  service  by 269-270 

Authority  of  to  take  life  of  soldier 314 

"  "   "   administer  oaths 347 

Eesponsibility  for  consequence  of  illegal  order. . .. . .  .353-354 

"  incurred  in  transporting  public  funds . .       475 

OFFICER'S  inF^lS. 

Not  a  partnershij) 466 

Liability  of  members  for  price  of  subsistence  furnished .       466 

OFFICERS'     SERVANT. 

Enlisted  man  not  legally  employable  as 10 

Eefusal  of  soldier  to  be  employed  as,  not  an  offence ...  10 

Acts  of  as  subject  of  complaint  under  Art.  30 16 

OFFICIAL.  PAPERS. 

Of  War  Department  not  opeu  to  public  inspection 349 

Authority  of  Secretary  necessary  to  examination  of  j . .  349 

Or  to  obtaining  of  copies  of , 349-350 

Of  what  papers  copies  generally  furnished 350 

Or  admitted  in  evidence 350 

Protection  from  disclosure  of  confidential  communica- 
tions   350 

OED  MATERIAL,  DArriAOED  STORES,  &c. 

Disposition  of  proceeds  of  under  Sec.  3018,  R.  S 407-408 

Authority  of  sale  of  under  Sec.  1241,  E.  S 443 

"ON  DUTY." 

Significance  of  term  in  Art.  38 16-18 

ONE  HUNI>RB::E>  and  eleventh   ARTI- 
CLE.   (Suspend! 99 g^  execution  of  sentence.) 

Officer  susi)ending  should  first  formally  ai:)i)rove  sen- 
tence  ,  92 

If  disapproved,  nothing  to  suspend 92 

General  authority  of  President  under  this  Article 92 

ONE     HUNDRED   AND     FIFTEENTH   AR- 
TICLE.   (Authority  for  courts  of  inquiry.) 

Nature  of  court  of  inquiry 96,  note. 

Can  be  ordered  only  in  cases  of  persons  in  the  army ...        97 


564  INDEX. 

ONE    HU]\I>KEI>     AWI>    FBFTEENTH    AR- 
TICLE—CoMtinMed. 

Page. 

Institution  of  by  inferior  commanders 97 

Assimilation  of  to  grand  jury 97 

Eight  of  accused  to  appear  before,  &c 97 

Proceedings  of  may  be  open . .   .  97 

By  usage  may  entertain  challenges  . . 97 

Cannot  XJunish  for  contemjit 98 

ONE     HUNOflEO    AND    FIRST   ARTICLE. 
(SentcMce  of  siispensioM.) 

See  Suspension 468-471 

ONE  IIfTNI>KEI>  ANI>  FOURTEENTH  AR- 
TICLE.   (FiirBilsBiing^  copy  of  record.) 

When  copy  may  be  furnished 95 

To  whom  msLj  be  furnished 95 

Agent  apiilying  must  show  authority 95 

Ai^plications  for  copies  how  made  under  the  Article . .  95 

Copies  how  furnished 95-96 

Api^lication  for  where  case  not  within  Article 95,  96 

ONE  HUNDRED  AND  FOURTH  ARTICLE. 
(Approval  of  proceedings.) 

Construction  of  term  "  whole  proceedings" 89 

Approval  to  be  given,  though  action  of  superior  re- 
quired   ' 89 

Approval  to  be  formal  and  official 89 

Instances  of  irregular  approvals 89 

Absence  on  leave,  &c.,  of  commander  as  affecting  au- 
thority to  apj^rove,  &c 89-90 

Absent  commander  cannot  delegate  authority 90 

''  Officer  commanding  for  time  being"  construed 90 

Effect  of  discontinuance  or  merger  of  command 90 

Authority  of  colonel  commanding  department  to  act 

under  this  Article ■. ^ 91, 134 

ONE  HUNDRED  AND    NII^ETEENTH  AR- 
TICLE.   (Opinion  of  court  of  inquiry.) 

The  opinion  not  a  sentence 98 

Dissenting  opinions  by  members 98-99 

Nature  of  opinion  in  general  called  for 99 

May  reflect  on  conduct  of  parties,  witnesses,  &c 99 


INDEX.  565 


ONE    HUNDRED    AND    NINTH    ARTICI.E. 

(Confiriiiatiou  siiid  execution,  g^enerally.) 

Meaning  of   term  ^'officer  commanding  for  the  time 


Page. 


beinff" 90 


'fe 


AutLority  under  of  colonel  commanding  a  department .         91 

ONE  HUNDRED  AND   SECOND  ARTICLE. 

(Second  trial  for  i^anie  ofience.) 

Meaning  of  word  "  tried,"  as  here  employed 83 

Waiver  of  objection  to  second  trial  83 

Prohibition  as  extending  to  minor  included  offence. .  83 

No  trial  where  court  without  jurisdiction  ; 83 

Or  illegally  constituted ; 83 

'^         "         composed ; S'd 

"  where  first  attemi)t  was  a  "mistrial" 83-84 

Previous  trial  by  civil  court  not  within  the  Article 84 

Apj)roval  of  reviewing  officer  not  essential  to  trial ....  84 
That  first  sentence  inadequate  can  not  authorize  second 

trial So 

ONE    HUNDRED    AMD   SIXTH    ARTICLE. 

(Confirmation   by  President   of  sentences 
of  €lisniissal.) 

"  Confirmed  "  synonomous  with  approved 91 

Signature  of  President  not  requisite  to  legal  confirma- 
tion   91 

Authentication  by  Secretary  of  War  sufficient 91 

Eecent  rulings  and  present  action  under  this  Article  - .  91-92 

ONE    HUNDRED  AND    THIRD   ARTICLE. 

(Einaitation  of  prosecutions.^ 

Application  of  to  cases  of  desertion 85 

When  limitation  begins  to  run  against  deserter So 

Euling  of  Attorney  General So 

Action  of  Congress  as  to  amendment  of  Article. .  .85-86,  note. 

Mere  absence  not  an  '^  impediment" SQ 

When  absence  may  constitute  impediment 8G-87 

Effect  of  plea  of  guilty  where  limitation  has   taken 

effect S(j 

What  held  to  be  '^manifest  impediments/'  and  vice 

versa 80-87 

That  offence  not  discovered  not  an  impediment 87 

Allegation  and  proof  of  impediment > . .  86, 87 


5b()  INDEX. 

ONE  HUIV©RED  ANB  TIISKB  ARTICLE— 
Continued. 

Page. 

Arrest  iiiiaulliorized  after  period  of  limitation 88 

Prohibition  of  Article  can  not  be  waived 88 

Application  of  to  trials  under  Arts.  48  and  60 88 

'^  "    '^      "      by  inferior  courts   88 

u  u    '' investigations  by  courts  of  inquiry..  88 

^'  ''    ''  complaints  under  Art.  30 88 

OWE  I1U]VI>REI>  AWO  TMIRTEEIVTH  AR- 
TICLE. (Forwardifiig  proceedi&ig^s  of  gen- 
erai  courts. 

An  incomj^lete  and  defective  statute 302,  note. 

ONE  IIITNBRE®  ANn  T^WELFTM  ARTI- 
CLE.   (Pardon  and  niiti§^ation.) 

Reservation  of  power  to  President 93 

Authority  given  to  commander  cannot  be  delegated . .  93 

Pardon  cannot  be  extended  to  executed  sentence  5 93 

But  exercisable  as  to  any  portion  of  punishment  re- 
maining unexecuted  ; , „.  93 

Also  at  any  stage  of  duration  of  punishment 93 

Practice  as  to  remission  of  sentences  of  confinement . .  93-94 

Commutation — what  - 94 

Mitigation — what 94 

Suspension  of  sentence  not  authorized  under  this  Arti- 
cle    94 

OWE  IIUWI>RES>  AND  TWENTY  FIRST 
ARTICLE.  (Proceedings  of  court  of  in- 
quiry as  evidence. ) 

Where  not  admissible  on  merits 99-100 

Admissibility  of,  to  impeach  witness  - .  1 100 

OWE  HUIVOREO  AWI>  Tl^EWTY  SEVEPITH 
ARTICLE.  (Disposition  of  effects  of  de- 
ceased oMcers  and  soldiers.) 

To  what  cases  the  Article  intended  to  apply 100 

Authorizes  only  disposition  of  certain  effects 100 

Administration  of  other  effects  not  to  be  assumed 100 

Function  of  commander,  when  fulfilled 100 


INDEX.  567 

0]\£  HUNDREDTH  ARTICLE.    (Dismissal 
for  coMraa^dice  or  fraud.) 

Page. 

Meaning  of  ''  cowardice  "  and  ''  fraud" 82 

Form  of  sentence . 82 

OPINION. 

Of  court  of  inquiry,  need  not  be  unanimous 98-99 

ORDER. 

Disobedience  of.     (Art.  21.) - .     9-10 

Effect  of  illegal  order 9-10,  352-353 

General  and  Special  Orders,  admissibility  of  in  evi- 
dence  256-257 

Legal  effect  of  orders  as  issued  by  Secretary  of  War . .       350 

When  order  affecting  officer  takes  effect 240,  350-351 

Api^lication  to  of  principle  of  notice 350-351 

Nature  of  notice  required  to  give  effect  to . . 351 

Effect  where  notice  not  received  by  fault  of  party  ....       351 

Order  as  affecting  rights  to  pay,  &c 351-352 

Notice  of  order  when  party  a  prisoner  of  war 352 

''      "       '•      of  dismissal  by  telegram 352 

Order  of  superior  when  a  justification  to  inferior 352-353 

ORDER  CONVENING  COURT  MARTIAE. 

Form — as  to  accounting  for  number  when  less  than 

thirteen  detailed 59-60 

''      as  to  accounting  for  rank  of  members  inferior  to 

accused 61 

"      as  to  showing  authority  of  commander 353 

"      as  to  so  describing  as  to  identify  members ....       353 
"       as  to  indicating  for  what  trials  the  court  or- 
dered   , 353 

Authority  to  try  soldier  under  order  for  trial  of  offi- 
cers   353-354 

ORDER  OF  PRO.TIUEGATION. 

Mention  of  name  of  President  in 354 

Eecital  of  specifications  in 354 

Issue  of  not  necessary  to  validity  of  proceedings 354 

Statement  in  of  proceedings  on  revision 354 

As  evidence  of  proceedings  stated  in 354 


568  -INDEX. 

OB5>NANCE  I>EPABTME]\T'. 

Page. 

Autliority  of  Chief  of  to  order  court  martial 63 

Eeturns  to  Chief,  of  arms  furnished  to  colleges 174 

"        for  arms  furnished  under  Act  of  M'ch  3, 1879.       355 

"OTHER  PEACE." 

Construction  of,  as  employed  in  Art.  82 64 

P. 
PARDON. 

Power  of  as  conferred  by  Art.  112 93-94 

Executive  i^ardon,  as  taking  effect  on  delivery 356 

Cannot  be  granted  to  deceased  person 356 

Effect  of  full  pardon  in  removing  disabilities 225,  356 

"      ^'  where  punishment  in  part  or  wholly  executed .  9,237 

357 

"      "  in  restoring  pay  forfeited 274, 357 

"      "■  in  removing  incidental  punishments 225,  358 

"      ''  in  discontinuing  continuing  punishments. .  .245,  358 
'•'•      ''  appointment  or    i)romotion  as    constructive 

pardon 358-359 

Effect  of  putting  on  duty  as  constructive  pardon 358,  359 

Pardon  on  condition,  precedent  or  subsequent 359 

Grounds  of  i>ardon  or  remission  in  cases  of  soldiers . .  359-360 
"        "        ''       "  "  ''      "       '^  officers....       360 

Pardon  of  deserters  at  large  . . . , 361 

''       "  deserters  from  draft,  &c.,  during  late  war..       361 

"       ''  political  offenders 357,361 

Remission  as  distinguished  from  full  pardon  ... ,  356,  426 

FAROI.E. 

Violation  of,  an  offence  against  the  law  of  war 329 

''         ''    by  prisoner  of  war 329,393 

Eelease  on  of  prisoner  of  war,  effect  of 393 

PAY  ACCOUNT. 

Signing  before  due  not  an  offence  under  Art.  13 5 

"  Duplicating,''  an  offence  under  Art.  60 , . .  33 

Not  negotiable  paj^er 361 

Effect  of  endorsement  of  by  holder  on  i^ayment  by  pay- 
master      361 


INDEX.  569 

PAY  AlVD  AI^LOWA^^CES. 

Page. 

Eight  to  pay  of  soldier  as  continuing  to  delivery  of  dis- 
charge   3 

Stoppage  of,  for  purposes  of  reparation  under  Art.  54,  25 
Officer's  right  to  as  commencing  from  acceptance  of 

appointment 106, 120-127,note. 

Eeappointment  with  back  rank  as  conferring  right  to 

back  pay 109 

Honorable  discharge  as  fixing  rights  to  pay 233 

Authority  to  reduce  pay  pending  enlistment 251-252 

Effect  of  sentence  of  forfeiture  of  pay,  &c 271 

What  pay  is 302 

Distinguished  from  allowances 3G2 

Eight  of  as  coincident  with  i)eriod  of  service 302 

A  legal  right  divestible  ouly  by  authority  of  law 303 

l^ot  divested  or  affected  by  mere  misconduct 271 

"          "        by  a  sentence  not  expressly  forfeiting  pay.  271 
"          ''         "  a  mere  order,  as  an  order  of  dismissal 

ofofficer 240,351,303 

Not  divested  by  mere  arrest  under  charges,  or  confine- 
ment, military  or  civil 303 

Not  divested  by  any  civil  process 304 

*^          "         "   a  forfeiture  under  a  previous  enlist- 
ment    303 

Of&cer  dismissed  entitled  to  pay  up  to  what  date 302 

"      resigning  entitled  to  pay  up  to  what  date 302 

Forfeiture  of  pay  by  operation  of  statute 302 

"         '^     ^'     ''  "        ^^  army  regulation...       270, 

304-305 
"        on  reappointment,  of  gratuity  paid  on  ijrevi- 

ous  muster  out 305-300 

Pay  cannot  be  temporarily  iHthheld  by  military  order . .       300 

Eight  to  pay  of  officer  ordered  to  await  orders 307 

"      "  allowances  of  officer  so  ordered 307,  note. 

Service  pay  under  Sec.  1202,  E.  S 307 

"         ''    on  account  of  services  as  medical  cadet. . .       307 
"         "     "        ''        ''        "       "  cadet  in  Mil.  Acad- 
emy      307,  note. 

Pay  of  mounted  officer 307-308 

"    ''  captain  detailed  as  x^ctg.  Asst.  Commissary.. .       308 
Additional  pay  on  re-enlistment 308-309 


570  INDEX. 

PAY  AND  AI^IiOT^ANCES— Continued. 

Page. 

Pay  deposited,  as  savings , 369 

'-'-    once  rendered,  beyond  control  of  military  authori- 
ties        369 

Pay  found  on  deserter  cannot  be  taken  i^ossession  of. .       369 

Indirect  remission  of  forfeiture  of  pay 369 

Assignment  of  soldier's  pay  prohibited .       369 

Order  for,  distinguished  from  assignment  of 369-370 

Pay  of  insane  officer  or  soldier,  how  payable 370 

Allowances  of  officer  detailed  as  professor 370 

''  "  engineer  officers,  how  payable 370 

Fuel  allowance,  right  of  retired  officer  to 370,  note. 

^'  "  "      "  officer  on  vsick leave  to 370 

"            "           of  officer  temporarily  absent  on  duty .  370-371 
What  allowance  of  other  fuel  equivalent  to  wood  al- 
lowance    370,  note. 

Allowance  for  quarters,  right  to  of  officers  on  cumula- 
tive leave 309 

Allowance  of  quarters,  right  to  of  officers  at  posts  where 

there  are  i)ublic  quarters 371 

Travel  pay,  right  of  soldier  to  as  affected  by  sentence 

of  forfeiture 371 

Pay  of  soldier  not  subject  to  lien  of  post  trader 384 

Stoppage  of,  when  authorized 465 

Effect  of  suspension  of  by  sentence 469,  470 

FAYMASTEK. 

Liabihty  as  disbursing  officer  under  Art.  60 34-36 

Prosecution  of  remedies  in  case  of  losses  as  disbursing 

officer 229-230 

When  not  liable  for  paying  an  amount  forfeited  by 

sentence - 274 

Eecourse  of  against  endorser  of  pay  account 361 

Liability  of  for  delivering  i:>ay  of  soldier  to  another 

I)erson 372 

Liability  of  for  safe  transportation  of  iniblic  funds  . . .       475 

PAYMASTER'S  CI.ERK. 

A  civilian  and  no  part  of  the  army 372 

Status  of  in  navy . 372,  note. 

Liability  of  to  military  jurisdiction  in  time  of  war 48, 372 


INDEX.  571 

PAYMENT  BY  MAIL.. 

Page. 

At  whose  risk 372-373 

Liability  in  ease  of  loss 373 

PENITENTIARY. 

See  Ninety  Seventh  Article 80-82 

PENSION. 

Bight  to  of  soldier  disabled  when  under  sentence 373 

Honorable  discharge  not  essential  to  entitle  to 373-374 

PEONAGE. 

Ofi'ence  of  surrendering  fugitive  peon 374 

Law  abolishing  peonage 374,  note. 

Duty  of  army  in  enforcing  law 374,  note. 

PERJURY. 

False  swearing  before  military  court  as  distinguished 

from  .    374^375 

How  to  be  charged 375 

Before  naval  courts,  law  relating  to 374,  note. 

General     provision    in    regard     lo,     of    Sec.    5302, 

B.  S 374-375,  note. 

Bule  as  to  proof  of,  as  ai)plied  to  military  cases    375 

"PERSONAE  SERVICES." 

Contract  for,  nature  of 187 

Bequirement  as  to  bond  from  contractor  for 120 

PERSUADINO  TO  I>ESERT. 

Natm-e  of  the  ofi'ence.     (Art.  51.),, 24 

PEACE. 

Averment  of  in  specification 150-152 

PEEA. 

Introduction  of  evidence  with  plea  of  guilty 203, 375-377 

Procedure  where  i)lea  and  statement  inconsistent  .  -  .377-378 

Withdrawal  and  change  of  plea 378-370 

Special  plea  in  nature  of  plea  in  abatement; , 140,  370 

Absence  of,  a  waiver  of  objection 370 

Special  plea  in  nature  of  demurrer 370 

When  absence  of  operates  as  waiver; 370 

Special  i3lea  on  account  of  illegal  constitution  or  com- 

j)ositiou  of  court,  or  want  of  jurisdiction 370-380 

Evidence  not  to  be  pleaded 152-153, 380 


572  INDEX. 

PI.EA  IN  ABATEMENT. 

Page. 

Special  plea  in  nature  of 149^  379 

F1.EA  OF  GUIETY. 

l^ot  a  waiver  of  want  of  jurisdiction 82,  211 

Introduction  of  evidence  witk 203, 375-377 

P01.I.IN0  OF  THE  COUKT. 

Unauthorized  in  military  law 205 

POSSE  COMITATES. 

Origin  of 380,  note. 

Emi^loyment  of  military  on  marshal's  posse 113,  380 

As  affected  by  legislation  of  June  8,  1878 113, 380-381 

State  official  not  authorized  to  summon  U.  S.  troops 

on 112, 381 

Military  relations  of  troops  serving  on 331 

Proper  conduct  of  same 381 

POST    COMMANBEK. 

When  ^'  on  duty '^  in  sense  of  Art.  38 17 

Eelation  toward  medical  officer  of  post 318 

]^ot  to  permit  post  to  he  asylum  for  fugitives  from 

justice 381 

Authority  of  as  to  custody  of  i)risoners  at  Alcatraz 

Island 381-382 

Authority  of  to  refer  cases  to  court  ordered  by  supe- 
rior officer .  154-155, 382 

POSTMASTER, 
Eight  of  to  extra  compensation  as  clerk  to  military 

officer .178-179 

POST  TKAI>EK. 

Statutes  fixing  status  of 382-383 

May  now  be  appointed  for  any  military  post 383 

Tenure  of  office  of 383 

Nature  of  appointment  of 383,  note. 

Amenability  of  to  military  jurisdiction 384 

Remedy  for  serious  misconduct  of 384,  387 

Has  no  lien  on  soldiers'  pay 384-385 

Liability  of  to  be  taxed  for  benefit  of  post  fund 385 

''         "    "  pay  civil  authorities  for  license  to  trade.  385-386 
"         '^    ''  taxation,whenonmilitary reservation.  144, 386 


INDEX.  573 

POST  TRADER— Continued. 

Page. 

Privilege  of  to  erect  buildiDgs  on  reservation  and 

remove  same 38G-387, 403 

Eligibility  of  to  Territorial  office 387 

Authority  of  to  trade  with  Indians 387 

How  far  can  be  required  to  sell  particular  articles 387 

POi;^  ER  OF  ATTOR]\EY. 

When  operating  as  assignment  of  contract 191 

'^     not  coupled  with  an  interest 388 

Effect  of  word  ''  irrevocable"  in 388 

"       '^   revocation  by  constituent 388 

PREFERRIIVO  OF  CHARGE. 

By  whom  charges  may  be  preferred 154 

To  what  commander  to  be  prelerred - 154 

PRESENTINO  FAESE  CEAIM. 

See  Sixtieth  Akticle 33, 150 

PRESIDENT. 

Authority  of  to  discharge  soldiers 3 

Oft'euce  of  disrespect  to 7 

Authority  as    to  confirmation   of  sentences  of   dis- 
missal   91-92,  and  note. 

Authoritj^  as  to  action  on  suspended  sentences 92 

Power  of  pardon  and  mitigation 93-94 

^'       "  appointment  an,d  promotion 106-109 

Authority  to  employ  army  for  civil  purposes 111-115, 292 

'^  "  make  army  regulations 116-117,  note. 

"  "  modify  "  ''  117-118,  note. 

"  "  ratify-  order  of  dismissal  made  by  military 

commander 240 

In  dismissing  by  order,  cannot  divest  right  to  pay 240 

Suspension  by  of  writ  of  habeas  corpus 278-280 

Authority  of  to  establish  military  reservations 336,  note. 

"  ''    "  discontinue     ^'  "  ...  .337,  note. 

"  "    '^  convene  general  courts  martial..  53, 388-389 

"  "    ''  ordersame  through  Secretary  of  War.       389 

"  as  Reviewing  Authority  of  proceedings  of 

military  courts 91,  92,  244,  389-390 

Authority  as  to  restoration  of  dismissed  ofiicer . . .    237, 

238,  241,  390-391 


574  INDEX. 

PRESIDENT— Contiimed. 

Page. 

Authority  to  retire  oEicers  of  the  army .  .431-432 

"  "  order  sales  of  military  stores 443 

As  represented  generally  by  the  Secretary  of  War..  445-446 
"  a  witness  in  a  military  case 484 

PKESIOaNO     OFFICER     OF     MILITARY 
COURT. 

Ko  special  rank  or  qualification  required  for 391 

Is  simply  the  senior  member  for  the  time    , 391 

Function  of  as  representative  and  organ  of  the  court. .     205, 

391-392 
Special  authority  under  Arts.  52,  53  and  85 ....  391  and  note. 

Equality  with  other  members 392 

Authority  of  over  other  members 392 

Bound  by  vote  of  majority  of  members 392 

Cannot  adjourn  court  against  vote  of  majority 392 

PRIWCIPAI.  MUSICIAI^. 

Status  of 107 

Ehgibility  of  to  appointment  as  2d  Lieutenant 107 

PRISONER. 

Treatment  of  in  confinement ^ 51, 121, 286 

Status  of  under  Sec.  1361,  K.  S 212-214 

Discipline  of  in  Military  Prison 212 

Eight  of  to  abatement  of  i^unishment  for  good  con- 
duct   : 289,290 

PRISONER  OF  l^AR. 

When  civil  employee  may  be  treated  as 392 

Partisan  not  entitled  to  be  treated  as 392-393 

Amenability  of  for  violation  of  laws  of  war  committed 

before  capture -     393 

Disposition  of,  when  guilty  of  homicide  of  another  pris- 
oner        393 

Violation  of  parole  by 393 

Effect  of  paroling  of  x^risoners  during  late  war 393-394 

Eeleased  on  parole,  what  duty  may  be  performed  by . .       394 

Disposition  of  when  paroled 394 

Eights  to  pay,  &c.,  of  officers  and  soldiers  while  held 

as 352, 394 


INDEX.  575 

PRISOIVER  OF  TVAR— Continued. 

Page. 

Riglits  to  pay,  &c.,  of  officer  dismissed  while  so  held.  230,  304 
"      '^       "      ^'     "    soldier  discharged  "     ''     "    . .       394 
"      "      "      "     ^'    military    prisoners    when     re- 
leased on  parole 394 

Entering  service  of  the  enemy  by,  when  justified 395 

When  to  be  treated  as  deserters  to  enemy 395 

PRIVATE  PHYSICIAIV. 

Authority  to  employ,  under  par.  1309,  A.  E 319 

Not  required  to  take  oath  of  office 348 

PRIVILEGED  COMMUI^ICATIOIV. 

Certain  official  papers  held  to  be 350 

Admissibility  of  in  evidence 350 

PROCEEOIWGS  AT  I.AW  AOAIl^ST  OFFI- 
CER, &C. 

Authority  of  commander  to  enjoin  in  time  of  war 317 

Defence  of  officers,  &c.,  in  civil  courts 198, 395, 396 

Procedure  under  Act  of  June  22,  1870 198, 390-397 

Eecourse  to  Congress  for  relief  from  judgment 397 

Protection  from  suit  or  prosecution  on  account  of  acts 

done  during  late  war 397 

PROCIiAMATIOW. 

Of  President  suspending  writ  of  habeas  corpus 278-279 

•^        ''  declaring  blockade 480,  note. 

"        "  ''         the  termination  of  the  war .  480,  note. 

PROFESSOR. 

Detail  of  officer  as,  in  civil  college 174-175 

Allowances  of  officer  so  detailed 370 

Pay  of,  at  Military  Academy 398 

PROMOTION. 

Prohibition  of  by  Act  of  June  18, 1878 107-108 

Act  did  not  affect  promotion  of  lieutenant  to  captain . .       399 

Promotion  to  captain  of  assistant  surgeon  - 108 

Effect  of  promotion  of  member  of  court 321 

Operation  of  par.  19,  A.  E 398 

"  "     '-     20,     "   and  Sec.  1204,  E.  S 398-399 

Promotion  as  constructive  pardon 358-359 

^^  "  afiected  by  sentence  of  suspension 399, 468 


576  INDEX. 

PKOSECUTOR. 

Page. 

As  included  in  the  term  "  accuser  or  prosecutor."  (Art. 
72.) 54-56 

Except  the  judge  advocate,  no  official  i^rosecutor  rec- 
ognized by  law 399 

Presence  of  prosecuting  witness  during  trial 399-400 

Examination  of  as  witness 400 

PROTESTT. 

By  minority  against  majority,  not  to  go  on  record  j 400 

Nor  to  be  ai)i)ended  to  record 400 

PROVISIONAL.  COURT  OF  I.OUISIAMA. 

As  established  in  New  Orleans  in  1831 308,  note. 

Authoritj'  of  as  affirmed  by  U.  S.  Supreme  Court ..  308,  note. 

PROVOST  COURT. 

Function  of  in  general • 307-308 

Exceptional  authority  of 308 

Eulings  of  courts  in  regard  to 308,  note. 

PROVOST  MARSHAI.. 
As  attendant  ui)on  a  court  martial 202,  note. 

PURIFICATION  BV  OFFICER. 
When  constituting  a  military  offence 44,  458 

"FUI5I.IC  EXIGENCY." 
Construction  of  term  as  used  in  Sec.  3709,  E.  S .  185, 186,  note. 

PUBi^IC  I.ANBS. 
Military  reservations  not  a  part  of 338 

PURI.IC  PROPERTY. 

As  acquired  by  capture 4, 139 

In  military  reservation 336-339 

"  national  cemetery 343-C44 

Provision  of  Constitution  in  regard  to  disposition  of. .       400 

Authority  to  deed  land  of  the  U.  S. . . 401 

"  "  lease     "     ^'    ''       " 401 

"  "  grant  any  usufructuary  interest  in 401 

Right  of  way,  &c.,  authority  to  grant 402-403 

Grant  of  interest  in  land  as  distinguished  froni  license. 

403-404 


INDEX.  577 

PUBL,K::  PKOPEETV— Cowtinued. 

Page. 

Authority  to  dispose  of  personalty  of  the  U.  S 405 

'^  ^'  purchase  laud  for  the  U.  S 405 

"  "  accept  gift  of  hmd  for  the  U.  S 405-406 

"  "  acquire  rights  in  laud  as  presumable  from 

Appropriation  Acts 405,  note. 

^'  ^'  expend  money  on  land  purchased  for  XJ.  S. 

40G,  note. 

"  "  purchase,  to  be  strictly  construed 406 

"  *^  acquire  land  for  U.  S.  by  right  of  eminent 

domain 406 

"         of  State  to  grant  right  of  way  through  mil- 
itary reservation 406 

Determination  of  conflicting  claims  to  land  of  U.  S. . .  407 
Title  to  land  as  granted  by  statute — vesting  of  same.  407 
Eight  to  buildings  erected  on  land  occupied  jure  belli .  407 
Disposition  of  public  property  under  Sec.  3618, 11.  S. 407-408 

PUNISHMENT. 

As  distinguished  from  a  rescinding  of  contract,  (by  dis- 
charge of  soldier) 3 

"  "  u      u  removal  from  office  (by  dis- 

missal of  officer  by  order) .       239 

"  "  '^     stoppage 5-6,227 

^ot  imposable  under  Art.  54 , 26 

Measure  of  under  Art.  i)S ...   28 

^ot  imi)osable  on  soldiers  confined  in  arrest 51 

Power  of,  as  vested  in  inferior  courts.     (Art.  83.) 65-67 

Customary,  in  case  of  contempts.     (Art.  SG.) 70 

Eeference  to  civil  statutes,  as  to  measure  of 28, 34, 

81,  332,  334, 450 
'Not  imposable  on  soldiers  after  discharge 234 

''  '^         by  order,  without  trial 451-452,  and  note. 

In  general — see  Sentence  and  Punishiment 447-453 

"PURCHASE."    (Of  land.) 

Purport  of  term  as  used  in  Constitution  and  statutes.     142, 

note,  405 
"PUT  IN  JEOPARDY." 
As  equivalent  to  tried  . 83 

37  D 


578  INDEX. 

QUABTERiTIASTER  GENERAL.. 

Page. 

Authority  of  in  settlement  of  claims  under  Sec.  300 
A.,  E.  S 171 

QUARTERMASTER  STORES. 

Settlement  of  claims  for  payment  for  1G9-171 

Disposition  of  as  suri^lus  material  of  Q.  M.  Dept 407-408 

Eight  to  detain  for  salvage , 444 

QUARTERS. 
Allowance  for,  as  affected  by  cumulative  leave  of  ab- 
sence   309 

''  "of  officer  awaiting  orders 367,  note. 

"            ''     "      "       detailed  as  professor 370 

"            '^     "  officers  at  military  posts 371 

Selection  of,  as  afi'ected  by  sentence  of  loss  of  files 312 

"         ''    "        "         '^         "         "  suspension....  469 

QUITCEAIin. 
Generally  given  on  conveyance  of  land  of  U.  S 309 

QUORUM  OF  MEMBERS. 

What  number  constitutes,  in  case  of  court-martial 59 

"           '^                "            a      u     a   military   commis- 
sion  , 327 

Statement  of  presence  of,  in  record • . .      414 


E. 


RAM  FEEET. 
Amenability  of  officers,  «&c.,  of  to  military  jurisdiction .  48-49 

RAIVK. 

Of  members  of  court  martial.     (Art.  79.) 60 

"  aids-de-camp  of  General 103-104 


INDEX.  579 

RANK.— Continued. 

Page. 

As  fixed  by  date  of  appointment lOG,  410 

u      u      u   orcier "  '•<'  lOG 

'<•      ''      <'   duration  of  service  under  Sec.  1219,  E.S..       410 

a      u      u   volunteer  service 410 

"      ''       '<-  "  ^'        in  Mexican  war .  -     ....410-411 

Eestoration  of  officer  to  rank  as  of  former  date 109 

"  to  rank  as  entitling  to  back  pay 109 

Brevet,  effect  of 134 

Superior,  entitles  to  no  privilege  on  trial  219,  254 

Eelative,  of  assistant  surgeons 100 

Authority  to  change  date  of,  after  commission 109 

READING  OF  PROCSEDINOS. 

Accused  entitled  to  be  present  at 219,  415 

Statement  of  in  record  419 

REASSEMBLING   OF  COURT. 

After  being  reduced  below  legal  quorum 59 

"      adjournment  without  day 103 

Statement  of  in  record   415 

REBELLION.  / 

Indian  war  a  species  of 293 

Begiuning  and  end  of  late  war  of 480,  note 

RECAPTURED  PROPERTY. 

Eight  to  restoration  of. 140 

Claim  for  salvage  of 140,  444-445 

RECOMMENDATION. 

Of  accused  to  clemency — not  a  part  of  the  record 411 

Capacity  of  members  in  signing 411 

Cancelling  of  name  of  member  after  signing 411 

l^Tot  to  be  lightly  made 411 

Criticisms  of,  where  ill-considered 411-412 

To  state  grounds  on  which  made 412 

Members  may  make  separate 412 

RECONSTRUCTION  ACTS. 

Jurisdiction,  &c.,  of  military  commissions  under 332-333 


580  INDEX. 

RECORD. 

Page. 

Of  field  officer's  court.     (Art.  80.) 62-63 

Eight  of  accused  to  copy  of.     (Art.  114.) 95-96 

Of  previous  court,  wheu  admissible  iu  evidence 99-100, 

255-256 

Duty  of  judge  advocate  in  making 300 

Eesponsibility  for  and  control  over,  of  the  court.  .300,  421-422 

Transmission  of  to  reviewing  authority . .    ..  ■ 302 

Eecommendation  hy  members,  not  a  part  of 411 

To  state  entire  x^roceedings  of  trial 412-413 

Each  record  to  be  comx)lete  ][)er  se. , 413 

''        "        ^^    "  separately  made  up 413 

"■        "        '^    contain  copy  of  convening  order  J ...  413-414 
And  of  other  orders  relating  to  composition,  &c.,  of 

court - .       414 

Statement  in  of  assembling  and  organization  of  court .  414-415 
u  u   'i  proceeedings  on  challenges,  if  any. .  .415-416 

^'  "   ^'  swearing  of  court  &  judge  ad v^ocate. 416-417 

"  ^'   "  arraignment  and  pleas 417 

'^  ^^   ''  testimonj^ — to  be  set  forth  in  full .    ...       417 

"  "   "  objections  to  testimony  and  action  on 

same 417 

"  "   as  to  finding  and  sentence 417-418 

Authentication  of  proceedings  in 418 

Action  upon,  form  of 89,  91,  92,  418 

Statement  in,  of  proceedings  on  revision 419 

To  exhibit  the  proceedings  in  the  proper  order 419 

Statement  in,  as  to  reading  of  previous  day's  proceed- 
ings          419 

"           "    •'    ''  hours  of  assembling  and  adjourn- 
ing   419-420 

May  be  printed  instead  of  written  , 420 

Endorsement  of 420 

Presumi^tion  as  to  regularity  of  proceedings  of. .  .78,  420,  421 

Defects  in  as  ground  of  disapproval 218, 420,  422 

ii        "    ''  invalidating  i)roceedings  . .    420-422 

Eulings  of  civil  courts  as  to  defects  in  proceedings . .  420-421 

Effect  of  loss  of,  after  or  before  api)roval 421 

Approval  and  adoption  of  by  court,  effect  of 421-422 

Correction  of,  on  revision 440-442 


INDEX.  581 

RECRUITSl^O  FOR  ElVEMY. 

Page. 

A  violatiou  of  laws  of  wur 329 

REDUCTION  IN  FIEES. 

See  Loss  of  files 311-312 

REDUCTION  TO  RANKS. 

Chief  musician  not  subject  to , 156 

Forfeiture  of  pay  upon 273-274 

Of  ofQcer  as  authorized  during  late  war 422-423 

Authority  to  direct  transi'er  of  a  non-comd.  officer  sen- 
tenced to 423 

"         "    deprive  of  warrant  a  non-comd.  officer 

sentenced  to 423 

RE-ENEISTMENT. 

Without  a  discharge,  effect  of.     (Art.  50) 23-24 

Additional  pay  upon 368-309 

REGIMENTAL  Ai^D  GARRISON  COURT. 

Jurisdiction  of  under  Art.  17 6 

Constitution  of  not  affected  by  concluding  i^rovision  of 

Art.  72 56 

When  superseded  by  field  officer's  courts 61,  62 

Constitution  and  comi)osition of.     (Aijts.  81  and  82.)..  63-05 

Jurisdiction  and  power  of  i)uuishment  of.     (Art.  83). . .  65-67 

Not  proi)erlj^  to  entertain  aggravated  offences 66-67 

A  chief  musician  triable  by 156 

Authority  to  detail  judge  advocate  with .  296 

REGIITIENTAE  COURT. 

Special  function  of  under  Art.  30 15-16 

In  general  see  Eegimental  and  Garrison  Courts. 

REGIITIENTAE  STAFF. 

Appointment  of .       110 

REGULAR  ARMY. 

Officers  of  not  authorized  to  try  volunteers.     (Art.  77.) .  37,  60 

Additional  aids-de-camp  as  a  part  of 104 

Tenure  of  office  in 424 

As  distinguished  from  volunteers 424, 478 


582  INDEX. 

REGUI.ATIONS. 

Page. 

See  Akmy  Eegulations. 

REL.IEF. 

Authority  to  relieve  contractor 193-195 

'•  '^        ''        dismissed  officer 237, 238, 241,  390- 

391, 478 

"  "        ^^        from  forfeiture  of  pay,  &c 274 

Extent  of,  by  executive  authority 424-425 

Authority  to  indemnify,  &c.,  for  an  act  of  the  past..       425 
''  "  relieve  by  changing  date  of  appointment.       425 

Congress  as  the  fountain  of  general  relief 425 

Authority  to  relieve  against  consequences  of  executed 

sentence ....... 453 

REHEVINO  THE  EWEMF. 

Offence  of.     (Art.  45.) .  20-21 

REIflARK!^. 

Authority  of  court  to  add  with  finding  or  sentence .. 205-206 
'^          ^'   reviewing  officer  to  make  in  connection 
with  action , , , .    .       437 

REMISSION. 

Of  punishment  under  Art.  112 93-94 

Of  imprisonment  by  discharge  of  soldier  pending  ex- 
ecution of  sentence - .    . 234, 288 

Partial  of  a  forfeiture,  inoi^erative  where  indefinite 275 

"        effect  of  on  right  to  abatement  of  sentence  by 

good  conduct    . 289 

Inoperative  in  case  of  executed  forfeiture  by  operation 

of  law.       270 
u  u     u     u         u  u  u  sentence.       274 

"  u     a     u  f^^y  executed  sentence 357,  453 

Principal  grounds  for  remissions  in  the  army 359-360 

Eemission  of  forfeiture  by  remission  of  dishonorable 

discharge . 369 

Effect  of  remission  as  distinguished  from  full  i)ardon.356, 426 

"REMOVAI.  OF  DISABIEITV." 

Nature  and  effect  of  in  cases  of  volunteeer  officers 426 


INDEX.  583 

RENT. 

Page. 

Claim  for,  on  account  of  premises  occupied  without 

contract 167 

"        "     under  Act  of  July  4,  18G4 -       170 

Contracting  to  pay,  in  advance  or  absence  of  appro- 
priation  187-188 

REPARATION. 

For  injuries  to  citizens  under  Art.  54 25-26 

REPORTER. 

Appointment  of  vested  exclusively  in  judge  advocate 

by  Sec.  1203,  R.  S -.301,  407 

Stenographic,  to  be  employed  only  in  important  case. .       407 

Authority  to  appoint  for  court  of  inquiry 427 

Compensation  of  stenographic 427 

Administration  of  oath  to.     Form  of  oath 427-428 

From  what  proceedings  to  be  excluded 172, 428 

REPRIJTIAND. 

Direction  as  to  execution  of  in  sentence 428 

Authority  of  reviewing  officer  as  to  form  of  administer- 
ing   ~ 428 

REQUISITION. 

Under  treaty  with  ^Mexico 259-2G0 

By  Governor  of  State  for  military  prisoner  under  sen- 
tence   31,  428-429 

RESIDENCE. 

Of  parent,  as  affecting  appointment  of  cadet 136 

Military  i)erson  not  incapacitated  from  acquiring 429 

Of  officers  on  active  list  in  general 429 

Station  of  officer  as  affecting  question  of 136,  429 

Of  retired  and  staff  officers,  &c 429,  473 

Intent  of  party  as  determining 429, 473-474 

RESIGNATION. 

Of  a  military  as  distinguished  from  a  civil  officer 430 

Operation  of,  upon  notice  of  acceptance 430 

Effect  of  revocation  of  acceptance  of,  after  notice 430 

Offer  of,  when  revocable 430-431 

Effect  of  when  tendered  by  insane  officer 431 


584  INDEX. 

RESTOKATIOM. 

Page. 

Of  dismissed  officer,  how  effected ......  237, 238, 241,  461-4G4 

"    officer  wholly  retired 433 

"   dismissed  voluDteer  as  distinguislied  from  regular 

officer 478 

REST®I£irVG        TO       DUTY       WITHOUT 

TKIAI.. 

Under  i^ar.  159,  A.  R.,  effect  of  in  case  of  deserter. .  .224-225 

RETAINER. 

Amenability  of  to  military  discipline.     (Art.  63.) 48 

RETAI.IATI01V. 

For  illegal  seizure  by  enemy 305 

As  an  exercise  of  war  power .» 481 

RETIBEO  LIST. 

Authority  to  appoint  directly  to 109,  433 

Who  may  legally  be  placed  on 433 

Placing  on  by  authority  of  Congress 109,  462,  463 

RETIRED  OFFICER. 

Kot  eligible  as  member  of  court  martial 58 

Eligibility  of  to  civil  office 159 

Exception  in  case  of  otlfice  in  a  Territory 159 

''  "     '^      ^'   diplomatic  and  consular  office..  159-160 

Detail  of  as  professor  in  college 174, 175 

Eight  of  to  fuel  allowance 370,  note. 

a     u    u  serv'ice  pay . .       433 

''      "    "  compensation  for  additional   office  under 

IJ.S..,   434 

Amenability  of  to  military  jurisdiction 433 

What  sentences  not  appropriate  to  status  of 433 

Liability  of  to  jury  duty  in  U.  S.  courts , 433 

Capacity  of  to  acquire  a  residence 429 

Liability  of  to  taxation  by  civil  authorities 473 

RETIREITIEIVT. 

Of  member  of  court,  effect  of .    321 

Function  of  Eetiring  Board 431 

Investigation  not  affected  by  limitation  of  Art.  103 431 

ligature  of  finding  of  Board 431 


INDEX.  585 

RETIREinEJVT— Continued. 

Page. 

Author! t^^  of  to  retire  for  incapacity  incurred  in  volun- 
teer service  431-432 

u  u    u      u       u  u         resulting    from 

drunkenness . . .       432 
"  Wholly  "  retiring  distinguished  from  dismissal  by  order      432 

Eight  of  officer  to  hearing  imor  to  wholly  retiring 432 

Pecuniary  allowance  to  officers  on  being  wholly  re- 
tired  432-433 

Status  as  a  civilian  of  person  thus  retired  -, 433 

Kestoration  of  such  person  to  army - .       433 

Only  commissioned  officers  of  army  eligible  for  retire- 
ment         433 

RJCTflRINC;  BOARD. 

See  Eetieement 431-432 

RETURNS. 

Class  of  contemplated  by  Art.  8 . . . , 4 

For  arms  furnished  to  colleges 174 


a       u 


"  ^'  certain  officers 355 


REVmWII^C}  OFFICER. 

When  member  of  inferior  court  may  become 65 

President  as,  under  Articles  of  War 91,  92, 389-390 

Function  of,  generally 434-435 

How  authority  may  be  divided 435 

Effect  of  appi'oval  by , 435 

'<■       ''   disapproval  by 435-436 

Upon  disapproval,  proceedings  not  to  be  transmitted 

for  action  by  sui)erior 435,  436 

Upon  disapproval  cannot  proceed  to  mitigate  or  com- 
mute        436 

Need  not  give  reasons  for  disapproval 436 

Cannot  himself  correct  a  defective  record 437,  442 

"       add  to  the  punishment 437,  451,  409 

Authority  of  to  remark  in  connection  with  action 437, 438 

"          '^  as  to  having  j)roceedings  revised  and  cor- 
rected      437 

To  defer  to  conclusion  of  court  where  testimony  con- 
flicting         438 

Form  of  action  taken  by 89,  438 


586  INDEX. 

REVIEWING  OFFICER— Continued. 

Page. 

Delegation  of  authority  by 90,  438 

Action  by,  when  subject  to  recall 438-439 

Authority  of  to  remit  punishment .93,  439 

Eeviewing  function  of,  when  exhausted 390,  439 

Competency  of  as  a  witness 483 

R£VISFI>   STATUTES. 

Of  1874,  a  single  act  of  Congress 439 

Effect  of  certificate  of  Sec.  of  State  as  to 439 

Operation  of  laws  relating  to  Army,  in 439 

Provision   in,    of  ^^  local   and  temporary  character," 

effect  of 439-440 

Of  1878,  effect  of ., 439,  note. 

REVISION. 

Proceedings  of  court  convened  under  Sec.  1230,  R.  S., 

subject  to 243-244 

Eecord  of  procedure  ui)on 419 

Authority  for  and  object  of,  gCDcrally .       440 

''         to  order  more  than  once  in  same  case 440 

Form  of  order  re- assembling  court  for 440 

Discretion  of  the  court  as  to  correction,  &c .440^  441 

Court  must  be  legally  constituted  for 441 

Judge  Advocate  to  be  present  on , 441 

When  accused  should  be  present 441 

Law  as  to  taking  of  testimony  on 441 

Correction  to  be  the  act  of  the  court 441 

Proper  form  of  making  and  recording  correction 419,  441 

Eeviewiug  ofiicer  not  authorized  to  correct  record. .  .437,  442 
When  revision  impracticable 442 

REVOCATION. 

Of  order  of  dismissal,  inoperative  in  law 241 

"  accei)tance  of  resignation,  effect  of 430,  note. 

REIVARD  FOR  ARREST  OF  ©ESERTER. 
See  Desektek 22G-228 

RIGHT  OF  WAV. 

Over  land  of  U.  S.,  authority  to  grant 401,  402 

^'      military  reservation  ''        "       '^     338, 402 

"  "  "  '^       of  State  as  to 400 


INDEX,  58'; 


s. 


SAFE  COI\DUCT. 

Page. 

See  Flag  of  Truce 209 

SAJLE  OF  ARMS,  &c.,  BY  SOLDIERS. 

Existing  law  in  regard  to 443 

Making  of  seizures  under  tlie  statutes 443 

SAEE  OF  MIEITARY  STORES. 

Under  Sec.  1241,  E.  S 443 

SAEVAGE, 

Exceptions  to  rule  that  public  X)roperty  liable  to 444 

Liability  to  of  supplies  en  route  to  army  in  war 444 

On  recaptured  property 140,  444 

^'   property  of  citizen  seized  and  used  in  war 444-445 

"  enemy's  property  captured  by  civilians 445 

SA VINOS  OF  SOEDEERS. 

Disposition  of  under  Sec.  1305,  E.  S 369 

SEAE. 

As  required  for  bond  of  disbursing  officer 12G-127 

"  "■         •'       "      "   contractor.   129 

SECOI^D  ARTICLE.    (Oath  of  enlistment.) 

Oath  not  essential  to  enlistment 1 

"     as  evidence  of  enlistment . .  v 1 

Form  of  oath  in  use  as  distinguished  from  that  in 

Article 1 

SECOIVD  TRIAE. 

In  the  same  case,  prohibition  of.     (Art.  102.) 83-85 

When  may  be  granted '60, 344-345 

SECRETARY  OF  ^SVAR. 

As  to  his  authority  to  discharge  soldiers  under  Art.  4.  3 

"   "     "  "         "  authenticate  executive  action  on 

sentences  of  dismissal 91 


588  INDEX. 

SECRETARY  OF  i;¥AR— Continued. 

Page. 

As  to  liis  authority  to  furnish  copies  of  proceedings  of 

courts  martial 95-96 

"   "     "  "         <'<■  x)roiuulgate  Army  Eegulations, 

117,  note. 

u   a     u  u         "  release  surety  on  bond 128,129 

u   "     "  "         "  reoi3en  claims 164-165 

"   "     "  '^         "  appropriate  money  to  pay  claims.       165 

u   a     "  "         ^'  allow  claims    for    unliquidated 

damages 166-167 

it   ii     ii  "         '«  allow  claims  for  compensation  for 

property  taken  for  public  use .       168 
"   "     ii          "         "  make  gratuitous  issues  of  cloth- 
ing to  soldiers 173-174 

«   ii     ii  "         ^^  issue  arms  to  colleges  under  Sec. 

1225,  R.  S 174 

a   ii     ii  <i         i'  enter  into  contracts 180 

i'   "     ii  "         "  modify  contracts 191-193 

a   "     ii  "         "  release  or  relieve  contractors ..  193-195 

ti   "     ii  "         "  issue  orders  of  dismissal  of  ofii- 

cers 240 

"   "     "          "         "  discharge  minors    from    enlist- 
ment  250-251 

"   "     "  "         "  direct  the  general  staft* 277 

"   "     ii  "         ''  dispose  of  articles  manufactured 

at  the  Military  Prison 335 

*^   "     "  duty  in  regard  to  maintaining  board  of  gov- 
ernment of  same 335 

u   u     u     u      u       u        u  visiting  the  same 335 

f'   "     ii     i'      "       i'       "  paying  appraised  value  of 

national  cemetery 343 

'^   "     "  authority  in  issuing  General    and    Special 

Orders 350 

'i   "     '<•  "         to  allow  examination  of  papers  of 

War  Department 349 

"   "     "  "  "   furnish  copies  of  same 349-350 

i'   it     'i          "          "   appoint  antl  remove  post  trad- 
ers  383,384,387 

"   "     "  'i  "   dispose  of  public  property- ..401-40'3 

^'   "     '^  function  of   representing  the  President  in 

general 445-440 


INDEX.  589 

SECRETARY  OF  lYAR— Comtinued. 

Page. 

As  to  when  he  is  authorized  and  when  required  by  a 

statute 335, 458-459 

^'   "    his  special  authority  under  Acts  of  Congress  re- 
lating to  restoration  of  dismissed  officers. 461, 4G3 

As  to  his  attendance  as  a  witness  before  courts  martial .       484 

SEEECTIOIV  OF   QUARTERS. 

Eight  of  as  affected  by  sentence  of  loss  of  files 312 

^'      ^<-    '^        ''         "  ^'         ''  suspension 4G9 

SENTENCE  AND  PUNISHMENT.    (In  greiieral.) 

Form  of  determining  at  discretion  of  court 447 

Approved  mode 447 

Duty  of  members  who  voted  to  acquit 447 

Sentence  where  Article  mandatory  as  to  i^unishment . .       447 

Validity  of  punishment  as  aflected  by  the  finding 448 

Discretion  of  court  not  limited  by  par.  895,  A.  E  . . .    .       448 

Eestriction  as  to  ''  cruel  and  unusual  punishment" 448 

Punishment  of  ball  and  chain 449 

Disuse  of  corporal  ijunishment  .    449 

Military  duty  as  a  punishment 449 

Cumulative  punishment. 288-289,  449-450 

Eefereuce  to  civil  statutes,  as  to  measure  of  punish- 
ment     .28,  34,  81,  332,  334,  450 

Proper  measure  for  olience  against  military  discipline .       450 

Meaning  of  '^  month"  and  "  day"  in  sentence 450 

Principle  as  to  adding  to  punishment 437,  451 

Punishment  not  legally  imi)osable  by  order 234,  451 

That  punishment  inadequate  no  ground  for  increasing 

or  modifying ,  ...       452 

Executed  sentence  beyond  the  control  of  revisory  func- 
tion. .  237,  389-390,  439, 453 
"  "  "         ''    reach      of     i)ardoning 

190,  439,  453 


SENTINEE. 

Offences  oi\  when  extenuated 18 

Offence  of  officer  improperly  placing  or  keeping  on  duty.  19 

Eespect  to  be  observed  toward , 453 

Entitled  to  protection  in  discharge  of  duty 453 

Offence  of  interfering  with  in  time  of  war  illustrated . .  453 


590  INDEX. 

SEPARATE  BRIGADE. 

Page. 

Authority  of  commander  of  to  convene  general  court. 

(Art.  73.) 56-58 

Effect  of  merger  of  in  another  command 90 

SERVICE  PAY. 

Eight  of  military  storekeeper  to 339-340 

Construction  of  Sec.  1202,  E.  S.  as  to 367 

Eight  to  on  account  of  service  as  medical  cadet 367 

"       ''    "        "         "        '^        "   cadet    at    Military 

Academy 367,  note. 

"•       ^'    of  retired  ofiScer 433 

SEVENTEENTH    ARTICEE.      (Selling:    Iiis 
arms,  &c,,  by  soMier.) 

Distinct  provisions  as  to  stoppage  and  i)unishment . . .  5-6 

Cognizance  of  inferior  court  under 6 

Does  not  affect  operation  of  paragraph  1027,  A.  E. ; . . .  6 

Or  authority  to  convene  board  of  survey  5   6 

But  proceedings  of  latter  not  evidence  on  a  trial ! 6,  note. 

Con str action  of  term  "  Ms  horse,  arms,"  &c 6 

Other    unauthorized    dispositions   of   property,   how 

charged ,.  6-7 

SEVENTIETH    ARTICEE.    (Term  of  con- 
finemefiit  ibi  arrest.) 

Unreasonable  detention  in  arrest  prohibited 52 

Liability  of  commander  permitting  unreasonably  long 
confinement 52 

SEVENTY    FIFTH    ARTICEE.     (Composi- 
tion of  courts  martial.) 

What  officers  eligible  as  members  of  general  court ....  58 

Eligibility  of  retired  officers 58 

"           "  enlisted  men  or  civil  employees 58-59 

"           *'  inmates  of  National  Home 216 

What  officers  not  to  be  selected 59 

Quorum  of  members,  what  constitutes 59 

Capacity  of  members  less  than  quorum 59 

Procedure  when  court  reduced  below  minimum 59 

Effect  of  action  of  court  so  reduced 59 

Eelieving  of  members  by  staff  officer  in  absence  of  com- 
mander      59 

Statement  in  convening  order  where  court  less  than 

maximum 59-60 


INDEX.  591 

SEVENTY    FIRST    ARTICEE.     (Arrest   of 
officer.) 

Page. 

Officer  when  entitled  to  release  from  arrest 52 

Kot  authorized  to  release  himself  - .   52 

To  make  due  application  when  entitled  to  release 52 

Construction  of  terms  of  Article  . .   52 

Service  of  copy  of  charges 52-53 

Arrest  at  remote  stations 53 

SEVEIVTY    FOURTH    ARTICfiE.      (Detail 
of  judg:e  advocate.) 

See  Judge  Advocate 296 

SEVENTY    NINTH    ARTICEE.     (Rank    of 
members  of  court.) 

Kank  of  members  at  discretion  of  convening  authority .         60 

"     ''         "       no  ground  for  challenge 60 

"     ''          ''        need  not  he  accounted  for  in  conven- 
ing order 61 

SEVENTY  SECOND  ARTICL.E.    (AutBiority 
•    to  coaivene  general  courts.) 

Authority  of  President  to  convene  courts  martial .  53,  388-389 

Discretion  of  military  commanders  in  convening  general 
courts 53 

Right  of  officer  or  soldier  to  demand  a  court 53 

When  colonel  commanding  a  department  may  convene 

a  general  court 53-54 

Effect  of  absence  on  leave,  &c.,  of  department  com- 
mander from  his  command,  on  his  authority  under 
Article 54 

Delegation  of  authority  hy  commander,  unauthorized 

and  improper 54 

Convening  officer,  when  ''  accuser  or  prosecutor,'^  in 
the  sense  of  Article 54-55 

Objection  that  convening  officer  was  "  accuser,"  &c . 

when  and  how  to  be  taken 55-56 

"  not  applicable  to  inferior  courts 56 

SEVENTY  SEVENTH  ARTICLE.    (Capac- 
ity of  reg:ular  officers  to  try.) 

Eegular  officers  not  competent  to  try  volunteers,  &c.         60 


592  INDEX. 

SEVENTY    TSIIISO  AKTTICI^E.     (l>ivi«ioii 
and  l>rig:ade  courts.) 

Page. 

'^  Division  "  and  ''  separate  brigade"  defined 56 

Commands  lield  equivalent  to  a  '^separate  brigade". .  56-57 

<^  District "  commands  as  separate  brigades 57-58 

Application  of  G.  O.  251  of  1864 57-58 

Oi^eration  of  Article  during  late  war - .  -  59 

SIONAt.  COISPS. 

Authority  of  chief  of  to  order  court  martial 63 

Olficial  report  of  member  of,  as  evidence 256,  note. 

Extra  duty  pay  of  enlisted  men  of 260 

As  to  telegraph  line  to  Station  of  at  Fort  Whipple 340 

Enlisted  force  of,  additional  to  the  established  comple- 
ment of  army 454 

SIXTIETM  AKT1CI.E.    (Fraud,  eantoezzle- 
mcMt,  &c.) 

Dupliciiting  pay  rolls,  when  chargeable  under  .    33 

Presenting  claim  for  forfeited  pay,  when  not  charge- 
able  , 33 

Various  kinds  of  fraud  held  chargeable  under 33 

Embezzlement — motive  of  not  material .......   . . 33-34 

Embezzlements  defined  in  Rev.  Sts.,  as  offences  under.         34 
Application  of  statutory  provisions  to  military  cases . .         34 

Embezzlement  under  Sec.  5488,  E.  S   34 

Not  necessary  to  prove  intent  to  defraud 34-35 

Embezzlement  under  Sec.  5490,  E.  S 35 

"  ''         ^'     5495,E.S .35-36 

Offence  of  misappropriation,  nature  of . . . . .    ...         36 

Form  of  charge  under  par.  9  of  Article 36 

Liability  to  trial  after  separation  from  the  service 37 

Application  of  statute  of  limitations 37 

Larceny  as  an  offence  under  this  Article 37 

Composition  of  court  for  trial  of  volunteers,  &c.,  under .         37 

SIXTY  FIFTH  AKTICE.E.    (BreacCa  of  close 
arrest.) 

Meaning  of  word  '■'•  crime." 50 

What  necessar3-  to  constitute  offence 50 

A  breach  of  arrest  not  "close,"  not  within  Article 50 

"       "       ''      "       without   confinement  to  quarters, 

how  chargeable , 50 


INDEX.  593 

SIXTY  FIFTH  AKTICLE-Continucd. 

Page. 

Acts  held  not  offences  under 50-51 

Ko  defence  that  accused  innocent  of  offence  for  which 

arrested 51 

Defence  if  put  on  duty  after  aiTcst 51 

Provision  of  the  Article  as  to  punishment 51 

SIXTY  FIRST.    (Unbecoming^  conduct.) 

Conduct  unbecoming  an  officer  and  a  gentleman,  de- 
fined  37-38,  39 

Various  acts  held  to  constitute 38-11 

When  neglect  of  pecuniary  obligations  amounts  to  . . .  39-40 

Kequirement  of  Article  as  to  sentence 41 

Special  finding  authorized  under 2G5 

SIXTY  SECOND  ARTICI.E.  (Conduct  prej- 
udicial to  g^ood  order  and  military  dis- 
cipline.) 

Meaning  of  word  "  crimes  " 42 

Indirect  charging  of  capital  crimes  under,  not  author- 
ized           42 

What  crimes  cognizable  under 42-43 

Crimes  and  offences  against  civihans,  when  chargeable 

under 43 

Exception  in  time  of  war 43 

Larcejiy  as  an  offence  under .42,  43-44 

Unauthorized  publications  by  ofiicers,  as  offences  un- 
der  , 44 

Various  disorders  and  neglects  held  chargeable  under .  44-45 

"        acts  held  not  so  chargeable . , 45-46 

Form  of  charge  under 46-47 

Faulty  forms  of  charge  under 47 

SIXTY  SIXTH  ARTICI.E.     (Confinement 
of  soldiers  in  arrest.) 

Extent  of  restraint  authorized 51 

Imi^osition  of  punishment  not  warranted 51 

SIXTY  THIRD  ARTICI.E.  (Jurisdiction 
over  civilians  in  viar.) 

Amenability  imposed — extent  of 48 

Retainers  and  camp  followers — how  punished  in  gene- 
ral           48 

38  D 


594  INDEX. 

SIXTY  THIRD  ARTICI.E:— Continued. 

Page. 

^  Persons  serving  with  armies  in  tlie  field,^  amenability 

of 48 

Classes  of  such  i)ersons  held  amenable  during  late  war .  48-49 

What  necessary  to  render  party  amenable 48-49 

Civil  employees  in  Indian  wars,  amenability  of 49 

Jurisdiction  to  be  exercised  with  caution  in  Indian 

war , 49 

Article  has  no  application  in  time  of  peace 49 

Term  of  the  jurisdiction,  how  limited , 49 

Clerks  of  quartermasters,  &c.,  held  not  amenable  in 

peace 49-50 

So  held  of  sui)erintendents  of  national  cemeteries 50 

SOLDIERS'  HOME. 

As  to  amenability  to  military  jurisdiction  of  inmates 

of 214, 216,  (notes.) 

u   u  forfeiture  of  pay  accruing  to 272 

SOLITARY  CONFINEMENT. 

Not  to  exceed  limit  prescribed  by  par.  895,  A.  E 454 

SPECIAL  PLEA. 

See  Plea 379-380 

SPECIFICATION. 

In  general — see  Charge 145-153 

General  rules  governing  finding  on  262-265 

SPY. 

Amenability  of  civilian  as,  under  Sec.  1343,  E.  S 455 

Gist  of  offence  of 455 

Cases  illustrating  nature  of  offence  of 455-456 

Must  be  taken  in  flagrante  delicto 456 

STAFF  OFFICER. 

Eligibility  as  member  of  court  martial 58 

Delegation  of  authority  to,  as  to  ordering  court  mar- 
tial          54 

"          "          ''         "     "    "  relieving  members . .        59 
^'          "          "          a     a    u   action    on    proceed- 
ings   90 

Status  of  as  aid-de-camp 103-104 

''      ''  on  '^General  Staff"    276-277 

Liability  of  to  taxation  as  resident 429 


INDEX.  595 

STATE. 

Page. 

Protection  of  under  Art.  IV,  Sec.  4,  of  Constitution .  .111-112 

Courts  of — authority  of  to  enjoin  military  officers 1G3 

"      ^^           '^          "  as  to  service  of  process  on  mili- 
tary persons 1G1-1G2 

Cannot  restrict  powers  of  general  government . .    1G3 

Courts  of — authority  of  as  to  discharge  of  soldiers  on 

habeas  corpus . 250,  note,  280-282 

Authority  of  to  tax  military  persons 472-174 

STATEMENT. 

Procedure,  where  statement  inconsistent  with  plea.. 377-378 

Privilege  of  accused  to  present 457 

Kot  evidence,  and  not  to  contain  matter  of  e\idence . .  301,  457 

Consideration  of,  by  court 457 

As  to  admission  of  facts  by 457 

Extent  of  freedom  allowable  in 457 

Prosecution  entitled  to  closing 457-458 

Waiver  of  right  of 458 

Offence  of  publication  of  improper  statement  by  officer .       458 

STATUTE. 

As  distinguished  from  regulation IIG,  and  notes. 

Giving  jurisdiction  to  court  martial,  to  be  strictly  con- 
strued  212,  note. 

Construction  of —as  to  Articles  of  war  in  general 458 

"  "     as  to  meaning  of  word  "may" 458-451) 

"  "      *'  "        "  ''      "      "authorized".      450 

"  "      "  affected  by  debates  in  Congress . .       459 

Authority  to  depart  from,  where  mandator}^ 4G0 

Construction  of  certain  statutes  for  restoration  of  dis- 
missed officers 4G1-4G4 

STOPPAOE. 

As  distinguished  from  punishment  under  Art.  17 o-6 

u  ii  a  u  a         a      54 25 

Of  reward  in  case  of  deserter 227 

As  distinguished  from  fine 2G7 

Of  pay,  when  authorized 4G5 

"      "    or  bounty,  for  liability  incurred  on  previous  en- 
hstment 4G5-4GG 


596  INDEX. 

SUBSISTENCE  STORES. 

Page. 

Charge  for  embezzlement  of 36 

Claims  for  under  Sec.  300  B.,  R.  S 169-171 

Eight  to  detain  for  salvage 444: 

Liability  of  officers'  mess  for 466 

Ten  per  cent,  when  to  be  added  to  cost  of 466-467 

SUMMONS. 

For  witness,  right  of  accused  to 483, 484 

"  "        service  of 484,  485 

"  "        to  precede  an  attachment 489 

SUNDAY. 

Authority  of  court  martial  to  hold  session  on 205 

"  "      '^  '^        "  find  and  sentence  on....  205 

Effect  of  enlistment  on 251 

"       "  convening  order  dated  on 353 

SUPERINTENDENT  OF  NATIONAE  CEM- 
ETERY. 

Amenability  of  to  military  jurisdiction 50 

Liability  of  to  work  on  roads 144-145,  note. 

Authority  of  to  arrest  trespassers,  «&c 344 

Disposition  of  in  case  of  misconduct 344 

"SUPERIOR  OFFICER." 

See  Twenty  First  Article 8-10 

SUPEIINUITIERARY.      (Under  Act   of  July 

15,  1870.) 

Status  of  officer  re-appointed  after  discharge  as 365-366 

Eights  of  officer  upon  transfer  to  supernumerary  list.  .467-468 

SURETY. 

Obligation  of 127-130 

Officer  of  army  as  127-128 

Married  woman  as 128 

Member  of  obligor's  family  as 129 

Eelease  of  by  acts  of  obligor 128 

^'        "  by  Secretary  of  War 128, 129 

''        ^'  ''  delay  of  suit  against 128 

Justification  of 128-131 

To  bond  of  disbursing  officer,  &c 126-129 

"       "      ''  contractor .....    129 

''      "      ''  college  under  Sec.  1225,  E.  S , . . .  130-131 


INDEX.  597 

SVROEOIV. 

Page. 

See  Medical  Officer 318 

SIJSPENDINO      EXECUTION      OF      SEN- 
TENCE. 

Under  Art.  Ill 92 

During  good  behavior 94 

SUSPENSION      OF      TTRIT      OF     HABEAS 
CORPUS. 

See  Habeas  Corpus 278-280 

SUSPENSION.    (Sentence  of.) 

Absence  pending,  as  affecting  right  to  "  cumulative'' 

leave 310 

Compared  with  sentence  of  loss  of  Hies 312 

Suspension  from  rank,  nature  of 4G8 

"  "        ''      as  affecting  office 408, 471 

"              "         "      amenability  of  officer  under . . .  468 

"              "        ^'      effect  of  on  right  of  promotion.  468 
"              "        "          "      "    "      ''     toriseinfiles.468-469 

"              "        "         "      '^    "      "     of  precedence  469 
"              "        <^         ''      ^'    ^'      '^      ^'  selection  of 

quarters 469 

"           does  not  involve  status  of  arrest 469 

"              "      "        ''        lossofpay 469 

"           of  pay,  effect  of 470 

"            "     "     does  not  affect  allowances ...  470 

"           effect  of  where  imposed  by  way  of  commu- 
tation   470 

"  as  affected  by  order  to  resume  command  or 

duty 470 

"           from  the  service,  meaning  of . . . 470 

"              "     duty,  meaning  of 471 

"              "     the  Military  xVcademy,  effect  of 471 

How  and  from  what  date  suspension  takes  effect 471 

Not  a  recognized  punishment  for  a  non-commissioned 

officer 471 

Status  of  officer  at  end  of  term  of  suspension 471 

SWEARINO  THE  COURT,  Ac. 

As  to  swearing  a  field  officer's  court . 62 

"    "        "         the  members  of  a  general,  &c.,  court . .  67-68 


598  INDEX. 

SWEARING  THE  COURT,  &c. -Continued. 

Page. 

As  to  swearing  the  judge  advocate  as  witness ....         75 

a  board  of  investigation 124 

a       a      a   survey 125 

^'  civilian  clerk  of  court  martial 172 

an  interpreter     "      "  "       295 

a  reporter  "      "  "       427-428 

Statement  of  in  record. 416-417, 421,  note. 


T. 


TAX, 

Liability  to,  of  persons  at  place  under  exclusive  juris- 
diction of  U.  S 144 

Levy  of  upon  an  enemy  jitre  belli 306 

Liability  of  post  trader  to 386 

Authority  of  State  to  tax  officer  or  soldier,  on  account 

of  his  pay,  &c 472 

^'          '•'•      "       u     a    iustrumentalities  of  the  gen- 
eral government 472 

Taxation  of  officers  as  residents 429, 473,  474 

^'        "  retired  officers 429,  473 

Liability  of  U.  S.  to  i^ay  taxes  as  owner  of  real  estate. .       476 

TEEEGRAOT. 

Evidence  of  sending  or  receipt  of . . .  „ 257 

Effect  of  notice  of  order  communicated  by  . ,. .  352 

TENURE. 

Of  officer  of  regular  army 104, 424 

<-*  office  where  no  term  fixed 383 

TERRITORT. 

Of  Alaska,  citizenship  of  foreigners  in 104 

*'        "        military  authority  in 104-105 

Employment  of  troops  for,  under  Art.  TV,  Sec.  4,  of  the 

Constitution , —      112 

Eligibility  of  army  officer  to  civil  office  in 159 

Execution  of  process  of  courts  of  in  cases  of  military 

persons 162-163 


INDEX.  599 

TERRITORY— Continued. 

Page. 

Origin  and  authority  of  courts  of 162-1G3 

Indian  territory,  disposition  of  intruders  upon  ......  114, 292 

Meaning  of  word  "territory"  in  Art.  lY,  Sec.  2,  §  2  of 
Constitution 336,  note. 

TESTIMONY. 

See  Evidence 253-259 

TEXAS. 

Jurisdiction  of  court  martial  in,  for  offence  committed 

across  tlie  Eio  Grande 208 

Extradition  by  or  through  military  commander  in  . .  .259-200 

THIRD  ARTICLE.    (Probibition  as  to  en- 
listments.) 

Effect  of  ui^on  validity  of  enlistments  of  the  prohibited 

classes 2 

Construction  of  word  "knowingly" 2 

"  "      "     "intoxicated" 2 

THIRTEENTH    ARTICLE.     (Signing    of 
false  certificate.) 

No  defence  that  accused  Relieved  certificate  to  be  true.  5 

Signing  pay  account  before  due  not  an  offence  under. .  5 

THIRTIETH    ARTICLE.     (Redress    for 
soldiers.) 

Not  in  conflict  with  Art.  83 15 

Nature  of  the  proceedings  authorized    15 

Complaint  not  affected  by  statute  of  limitations ; 15 

But  to  be  made  within  reasonable  time 15 

Who  may  summon  the  court 15 

Complaint  against  person  no  longer  in  service  not  cog- 
nizable    15-16 

"               "       officer  for  unauthorized  act  of  serv- 
ant, not  cognizable 16 

THIRTY  EIGHTH  ARTICLE.    (Drunken- 
ness on  duty.) 

Significance  of  term  '^  found  drunk"  illustrated 16 

Drunkenness  i^reventing  soldier  from  going  on  duty 
not  chargeable  under  Article 16 


600  INDEX. 

THIRTY  EIGHTH  AUTICI^E— Continued, 

Page. 

Officer  reporting  for  duty  drank  held  chargeable 16 

Effect  of  becoming  drunk  when  absent  from  duty 17 

Drunkenness  on  duty  in  case  of  a  post  commander  ...  17 

"            ''      "     "     '^     ""  medical  officer 17 

Nature  of  the  drunkenness  constituting  the  offence ...  17 
Distinctions  in  drunkenness,  by  findings  of  court,  not 

favored 17-18 

How  the  drunkenness  may  be  induced 18 

Drunkenness  off  duty,  how  to  be  charged 18 

Article  mandatory  as  to  sentence 18 

THIISTY  NIJ^TH  ARTICEE.    (Offences  toy 
sentinels.) 

Circumstances  not  constituting  a  defence  to  charge 

under  Article; 18 

But  admissible  in  evidence  in  mitigation  of  jDunish- 

ment 18 

Eesponsibility  of  officer  for  imposition  of  excessive 

guard  duty 18-19 

TIE  VOTE. 

Effect  of  on  a  finding 266,447 

'•'•       "    ''  an  objection  to  testimony 479 

u       u  jji  general „ , 479 

TIME. 

Averment  of  in  specification 150-152 

TRANSPORTATION  OF  PUBEIC  FUNBS. 

Liability  of  officer  charged  with 475 

TRAVEE  FAY. 

Of  discharged  soldier,  as  affected  by  sentence  of  for- 
feiture        371 

TREATY. 

Of  cession  by  Eussia  of  Alaska 104 

With  Indian  tribe,  disposition  of  persons  violating . . .       114 

Effect  of  as  to  '' Indian  country"  . .    291-292 

Between  Cherokee  nation  and  confederate  government .       292 

Of  extradition  with  Mexico 259-260 

Legal  effect  of  under  Art.  YI  §  2  of  Constitution  .  .338,  note. 


INDEX.  601 

TRIAL. 

Page. 

Proliibition  of  second  for  same  offence.     (Art.  102.)  . .  83-85 

Defence  of  accused  upon 218-220 

Provision  for  in  case  of  of&cer  dismissed  by  order. .  .242-244 
New,  when  authorized 344-345 

"TRIED," 

Meaning  of  in  Art.  102 83 

T\FENTIETI1    ARTICL.E.     (Disrespect    to 
commanding^  officer.) 

Construction  of  term  ^' commanding  officer" 8, 9 

Application  of  Article  to  soldiers  on  detached  service .  8 

TTFEI^TY  FIFTH  ARTICLE.    (Provoking: 
conduct.) 

Authorizes  measures  of  prevention  and  restraint  only .         13 

TlFEf^TY  FIRST  ARTICEE.    (Violence  to, 
and  disobedience  of,  superior.) 

Ofl'ering  violence,  &c.,  proof  of 8-9 

Where  death  caused,  statement  of  in  specification 9 

"  Superior"  distinguished  from  commanding  officer. . .  9 
Disobedience  of  su]3erior — proof  that  officer  known  to 

be  such 9 

^on-compliance  with  order  of  non-commissioned  offi- 
cer, how  to  be  charged 9 

The  order  or '^ command"  to  be  shown  to  have  been 

*aawful." 9 

Presumi)tion  in  favor  of  legality  of  military  orders 9 

Inferior  protected  unless  order  i^alpably  illegal .  9-10,  352, 353 

Eisk  in  disobeying  orders  as  unlawful 10 

Instances  of  orders  held  not  "  lawful." 10,  and  note. 

Nature  of  the  order  contemplated  by  Article . 10 

Liability  for  disobedience  of  orders  when  on  leave  of 

absence 10 

Offence  under  this  Article  as  distinguished  from  mu- 
tiny    11 

TTFENTY    FOURTH    ARTICEE.      (Frays, 
&c.) 

The  Article  an  application  of  common  law  principles .  13,  note. 

Authority  to  arrest  affrayers 13,  note. 

"  "  prevent  breaches  of  thex)eace 13,  note. 


602  INDEX. 

TH^ENTT  SECOND  ARTICEE.    (inutiny.) 

Page. 

Mutiny  defined.    The  distinguishing  intent 11 

Offences  under  Article  not  necessarily  joint 11 

Combination  as  evidence  of  intent 11 

Mere  disorders  not  chargeable  under  this  Article 11 

Good  faith  of  accused  as  affecting  charge  of  mutiny . .  11-12 

Opposition  to  illegal  order  not  mutiny 12 

Mutiny  as  extenuated  by  oppressive  acts  of  superior . .  12-13 

Ti;VEWTY  SIXTH  ARTICEE.   (CSialleng^e  to 
duel.) 

Definition  of  challenge 14 

Intent  how  shown 14 

Duelling  not  chargeable  as  a  specific  offence 14 


u. 


UNAUTHORIZED  PUBLICATIONS. 

By  officer  as  a  military  offence 44,  458 

UNITED  STATES. 

Form  of  conveyance  of  land  by 409 

Liability  of  for  taxes  as  land  owner 476 

UNLIQUIDATED  DAMACtES. 

Authority  to  allow  claims  for 166-467 

USAGE. 

See  Custom  and  Usage  of  the  service. 


VARIANCE. 

Between  averment  and  proof  as  to  time  of  offence 152 

In  name  of  accused,  when  material 477 

How  to  be  corrected 477 

Effect  if  material  variance  not  corrected 477 

Variance  in  middle  name 477 

VETEKAN  VOI.UNTEER. 

Eight  to  bounty  of,  as  affected  by  promotion 133 


INDEX.  .  603 

VIOL.ATIO]V  OF  I.AW  OF  TTAR. 

Page. 

By  breacli  of  rule  of  non  intercourse 304,  305 

As  cognizable  by  military  commission 328 

Instances  of  as  tried  by  during  late  war 328-329 

Liability  for  by  i^risoner  of  war 393 

Breach  of  rule  of  non-intercourse  as  distinguished  from 

ofience  of  spy 455-456 


VOLUNTEERS. 

Nature  of  engagement  of  during  late  war  illustrated . .         12 
Amenability   to     military  jurisdiction    after   muster 

out . 37,  note. 

Eegular  officers  not  eligible  for  trial  of 37,  GO 

Eight  of  Certain  officers  of  to  extra  pay 2G1 

Service  in  as  entitlirg  to  relative  rank  in  army 410 

"Eemoval  of  disability"  in  cases  of  officers  of 426 

As  distinguished  from  Militia  and  from  Eegulars .  .00,  424,  478 

A  part  of  the  Army  of  the  United  States 478 

Eelief  of  dismissed  officer  of 478 

TOTE. 

Statements  of  in  record  held  to  be  in  violation  of  oath 

of  members A  ...   68-69 

Eflect  of  tie  upon  a  finding 266,  479 

Of  each  member  of  equal  efi'ect 392 

Presiding  officer  has  no  casting 392 

Of  majority,  effect  and  sufficiency  of 266,  392, 400,  479 

"   minority  by  way  of  protest,  effect  of 400 

Voting  on  sentence,  approved  mode  of 447 

Obligation  of  members  to  vote  a  sentence 447 

Tie  vote,  effect  of  in  general ......    479 


w. 

TTAIVER. 

Of  objection  to  second  trial  for  same  offence 83 

•'   operation  of  limitation  of  Art.  103 88 

"   charge,  by  putting  on  duty 101,  358 

"   defence,  by  an  escaj^ing  by  accused  on  trial 205 

"  objection  to  charge  by  omission  to  plead  specially.  379 

"   right  to  hearing  by  officer  wholly  retired 432 

u      a      u  make  statement 458 


604  INDEX. 

1¥AR.    (The  late.) 

Page. 

As  terminated  by  proclamations  of  President ....       480 

Beginning'  and  end  of  as  fixed  by  Supreme  Court 480 

^WAR  POIVER. 

Of  the  United  States 480-481 

Assum lotion  of  by  State  authorities .  .> .  - 481 

ITASHINGTON  ARSENAl.. 

Authority  of  District  Commissioners  over 339 

"WHOI.I.Y"  RETIRINO. 

Distinguished  from  dismissal  by  order  . , 432 

Eight  to  hearing  of  officer  before  being  wholly  retired .       432 

Pay  of  officer  upon  being  wholly  retired 432-433 

Kestoration  of  officer  thus  retired 433 

IFIFE. 

Ill  treatment  of  as  ground  of  charge  under  Art.  61..        41 
Of  accused,  admissibility  of  as  witness  before  court  mar- 
tial        482 

u        u  u  u   u        u  u     court     of 

inquiry  ..       482 
"  prosecuting  witness,  admissibility  of  as  witness 482 

TVITWESS. 

Eefusal  of  to  testify  as  an  offence  under  Art.  62 44 

"        "   ^'      "        "a  contempt.     (Art.  86.) 69 

^^        "   "  attend  "  "        "  (     "     "  ) 69 

DeiDosition  of  when  admissible ^ 73-75 

"  ''  by  whom  may  be  taken 74,  75 

Oath  of — how  form  may  be  varied 75 

"     "    by  whom  administered 75 

"     "    to  be  but  once  taken  on  a  trial 75 

Impeachment  of  by  record  of  previous  testimony ....       100 

Status  of  accomplice  admitted  as 101-102 

Credibility  of  accomi)lice  admitted  at 257 

Testimony  of  when  sick,  how  may  be  taken 103 

Eight  of  to  exemx)tion  from  arrest 120-121 

Authority  of  board   of  investigation    to   administer 

oath  to 124 

"  "        "        "    survey  to  administer  oath  to.       125 


INDEX.  605 

1¥ITNESS— Continued. 

Page. 

Effect  of  naming  on  list  accompanying  charge 155 

That  not  on  list  no  objection  to  introduction  of 155 

Authority  of  court  to  have  summoned 202 

Authority  of  court  to  cause  arrest  of  for  perjury 201 

Examination  of 254,  255 

Testimony  of,  to  have  weight  where  pertinent 254 

Effect  of  appearance  and  manner  of,  under  examina- 
tion   254,  438 

Procedure  where  insanity  developed  by 294-295 

Prosecuting,  privilege  of; 399-400 

"  generally  to  be  first  examined 400 

General  rules  governing  competency  of 481 

Accused  when  admissible  as 258,  482 

"         mode  of  examination  of 258,482 

"        wife  of,  admissibility  as 482 

Wife  of  prosecuting  witness,  admissibility  as 482 

Indian,  competency  as 482 

Member  of  court,  competency  as  . . .    482-483 

"         "     "       introduction  of,  when  not  advisable-       483 
Judge  Advocate,  competency  as 483 

"  "  how  examined  as 301 

Eeviewing  officer,  competency  as 483 

Introduction  of  unexpected,  as  ground  for  continuance .       483 

Incompetency  of  on  ground  of  insanity 294,  483 

Eight  of  accused  to  have  summons  issued  for 483-484 

Deposition,  when  to  be  resorted  to 484 

How  testimony  to  be  taken  of  high  officials 484 

Summons  for  witness  issuable  anywhere  in  U.  S 484-485 

"         how  to  be  served 485 

'^         expense  of  service  of 485 

Privilege  of  witness  to  modify  testimony 485 

Kule  as  to  separating  witnesses  before  testifying 485 

Witness  not  authorized  to  discharge  himself . 485-486* 

"         "            "           "  determine  whether  his  testi- 
mony material 485 

Privilege  of  to  refuse  to  give  criminating  answer 480 

Consequence  of  unreasonable  refusal  by 480 

Legal  fees  of  civilian  witness,  what  and  how  paid 486-487 

Compensation  of  military  witnesses  for  attending  be- 
fore civil  courts 487,  note. 


606  INDEX. 

l¥ITWf:SS— Continued. 

Page. 

Eight  to  fees,  of  civilian  employees  of  U.  S 487 

"       "     "      "        '■'•       giving  deposition 487 

Judge  Advocate's  certificate  of  attendance,  witness  en- 
titled to.      487 
'^  "  "         ''  "  effect  of  as 

evidence.      487 

Eight  to  fees  as  affected  by  issue  of  summons 487-488 

"      ii     i'    not  acquired  by  mere  voluntary  attend- 
ance   o , 488 

"      *'     "       "    affected  by  a  refusal  to  testify 488 

"       <'     '^       "         ''        ^'   having  testified  falsely.        488 

What  period  may  be  covered  by  certificate 488 

Eecourse  for  compensation  for  further  detention 488 

Claim  of  witness  for  damages 488-489 

Authority  of  retiring  board  to  summon  witness 489 

Fees  of  witness  for  attendance  before  retiring  board . . .       489 
Witness  not  entitled  to  fees  for  attendance  at  prelim- 
inary investigation 489 

Attachment,  authority  of  judge  advocate  to  issue 489 

'^  under  what  circumstances  issuable 489 

"           not  issuable  to  compel  witness  to  give  dep- 
osition        489 

"  form  of,  in  general 489-490 

"  issuable  any  whither  in  United  States 490 

"  cannot  properly  be  directed  to  a  U.  S. 

Marshal. 490 

"  to  whom  in  general  to  be  directed  for 

service 490 

"           execution  of — oijinion  of  Attorney  Gen- 
eral   490,  note. 

"  "  '^  —directions  in  G.  O.  93  of 

1868 490,  note. 

British  law  as  to  attachment  of  military  witnesses .  490,  note. 

Objection  to  similar  provision  in  our  law 490,  note. 

Authority  to  punish  attached  witness,  as  for  contempt.       491 

WRECK. 

Authority  to  remove  as  obstruction  to  commerce 290, 291 


T  U       ^^^J    .' 


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